Petition — Moeller v. Browne

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Supreme Court, U.S.

80-753 Pee 2 es

Dy. ccmtnnets NOV 10 1980

MICHAEL RODAK, JR. CLERK

IN THE

Supreme Court of the United States

October Term, 1980

CuarLes D. Morgner,

Petitioner,

Vs.

Donatp A. Browne, Bernarp LucKkart

and Victor Lisusrpt1, ~

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

TxHeEopore I. Koskxorr

Ricuarp A. Fucus

Kosxorr, Kosxorr & Brepsr, P.C.

55 Chapel Street

Bridgeport, Connecticut 06604

(203) 336-4421

Attorneys for Petitioner

Questions Presented

Petitioner was acquitted by a jury of federal charges

regarding a conspiracy to commit arson. Subsequent to his

acquittal petitioner was recharged by the State of Connec-

ticut with the same conspiracy to commit the same arson.

The questions presented for review are:

1. If state and federal interests in prosecuting petitioner

are identical, does petitioner’s state retrial after a federal

acquittal for the same acts constitute a denial of due

process?

2. Does the doctrine of collateral estoppel bar relitiga-

tion of facts in a state criminal trial which were neces-

sarily adjudicated against the federal government in a

prior federal criminal trial?

3. Should Bartkus v. Illinois, 359 U.S. 121 (1959) be

overruled?

TABLE OF CONTENTS

PAGE

IS ca aha eepesebatiinssguilinietsinjontenvenshadions i

i a andansisoglainnneneiinmicle 1

Tee kl anstsulinisinaissodnephcdabe 2

Constitutional Provisions and Statutes .......0.0000.0000....... 2

TE TEI so essiricatevnaceesinnnsinantuhcenhebarsencosnsnpeenss 7

Reasons for Granting Petition .02..0..00..00..0ecccccceeeeeeeeeeeeee 9

A. Decisions of this Court Indicate that In Situa-

tions Where the Interests of the State and Fed-

eral Governments Are Identical, the Due Proc-

ess Clause Should Bar a State Trial Following

a Federal Acquittal for the Same Acts ............ 9

B. The Doctrine of Collateral Estoppel Should

Also Be Held to Bar This Prosecution ............ 21

C. Bartkus v. Illinois and Its Dual Sovereignty

Doctrine Have Been So Eroded as to Be With-

Out Valid Force 2... cece ccccccccccececcecceceeseneeceeseeee 22

IIE (2S. 2. eahsnnibewntondoensttenerusevererecocadéeceapneeseceens 28

Certificate of Service .......cccccccceccccccceceeeeeceeeceneescececeeeceseeee 29

Appendix “A”—

Order of United States Court of Appeals .............. la

ill

PAGE

Appendix “B”—

Judgment of United States District Court ............ 3a

Memorandum of Decision of United States Dis-

SN ID einascen sania tens ctiiennsthcnsisegincctiieassiecaidi bushel 5a

Appendix “C”—

Decision of Supreme Court ...0.0.............ccccceccescsssesseeee l5a

Appendix “D”’—

Oe Te NIE NS bocieisclidistasenciccnshensnvionnsensetdncincleis 29a

Appendix “H”—

Cette, Btntem COmaCiCGOe ooccccsciiscsccecccesenccenssccsesvcbis 35a

Appendix “F”—

United States Constitation §..........cccccccoccsosscccscssssecsses 36a

TaBLE oF CITATIONS

Cases:

Abbate v. United States, 359 U.S. 187 (1959) ....00........ 16, 19

Abney v. United States, 431 U.S. 651 (1977) -.2..002000.. 12

Ashe v. Swenson, 397 U.S. 436 (1970) .........0.......-.- 13, 14, 15,

21, 22, 26

Ashe v. Swenson, 399 F.2d 40 (8th Cir. 1968) ................ 14

Bartkus v. Illinots, 359 U.S. 121 (1959) oe. passim

Benton v. Maryland, 395 U.S. 784 (1969) .............. 11, 21, 23,

24, 26

Breed v. Jones, 421 U.S. 519 (1972) ooo. eeecsseeeeeeeee 13

Davidson vy. New Orleans, 96 U.S. 97 (1878) 0000.2... 10

PAGE

Elkins v. United States, 364 U.S. 206 (1960) ........ 24, 25, 26

Feldman v. United States, 322 U.S. 487 (1944) ............ 25

Green v. United States, 355 U.S. 184 (1957) ......... secessel dy 24

Hoag v. New Jersey, 356 U.S. 464 (1958) .............. 13, 14, 15

Knapp v. Schweitzer, 357 U.S. 371 (1958) ......0.... 25

Lustig v. United States, 338 U.S. 74 (1949) 000. 24

Malloy v. Hogan, 378 U.S. 1 (1964) 0... eee eteceeeee 26

Mapp v. Ohio, 367 U.S. 643 (1961) ...................ccsccecceccecees 25

Murphy v. Waterfront Commission, 378 U.S. 52 (1964)

25, 26, 27

Palko v. Connecticut, 302 U.S. 319 (1987)........ 10, 11, 23, 23n

Petite v. United States, 361 U.S. 529 (1960) ....000000000..... 16n

Rinaldi v. United States, 434 U.S. 22 (1977)......16, 17, 18, 20

Screws v. United States, 325 U.S. 91 (1945) 0... 10

Smith v, Umted States, 423 U.S. 13803 (1975) -...00......... 27

State v. Moeller, 178 Conn. . A.2d ——, Conn.

L. J. Vol. XL, no. 51, p.20 (June 19, 1979), cert.

denied, —— U.S. ——, 62 L.Ed. 2d 320 (1980).......... 7,8

United States v. Bubar, 567 F.2d 192 (2d Cir.), cert.

an, BI Tres HE COD | ccscshintniendacieenediesis safnnmnssontince 7

United States v. Jorn, 400 U.S. 470 (1971) -..200. ee. 12

United States v. Mespoulede, 587 F.2d 329 (2d Cir.

MUPTET: | cccsdbphesestincpishbnddeioianedins ghtub eenibicialtalabtaaincebeabaiicsiudeitione 15

United States v. Murdock, 284 U.S. 141 (1931) 200000000... 25

PAGE

United States v. Oppenheimer, 242 U.S. 85 (1916) ...... 21

United States v. Scott, 437 U.S. 82 (1978) .........00......... 24n

United States v. Wheeler, 435 U.S. 313 (1978) ....18, 19, 20

Waller v. Flagida, 397 U.S. 387 (1970) 20.00... ececeeeeeeee 27

Other Authorities:

Fe RE SE © searesesetieshinsahinrsiepiimnihaahiinnccnsiocsinanibinehiametialiitinbcasas 2,7, 8

Se RU I hliesissncancvicienlgpsdaasnis dela fescue abigteaieiaees 8

Be a, IIE exshscscesncecsestsitntesennnente RRS Mn ee 3,7, 8

PRR EINES vsnssselscaiinicianaciaigberudaedlinpephunsidieselintiseanbssos 2

SII MEINE sce saeshnpneebinntAdipliip neni niceaiouditaiatouiliaagaaeiain 8

Connecticut General Statutes §53a-35 220s 4,8

Connecticut General Statutes §53a-48 2200 6,7

Connecticut General Statutes §53a-112 ...0000002 6, 7,8

Connecticut General Statutes §53a-113 ..0002 7

U.S. Constitution, Amendment V ...00.000.00000.0.cceee. passim

U.S. Constitution, Amendment XIV .....00000000000000-..... passim

Restatement, Judgments (1942) §83 0020.2. 22

IN THE

Supreme Court of the United States

October Term, 1980

CuarLes D. MogE.uer,

Petitioner,

vs.

Donato A. Brownz, Bernarp Luckart

and Victor Lrsurpt,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Opinions Below

Petitioner originally moved to dismiss the information

against him on May 25, 1977, which motion was denied

by the Superior Court cf Connecticut in an unreported

opinion (App. p. 29A). The Supreme Court of Connecticut

affirmed the Superior Court in an opinion reported at 178

Conn. . A.2d ——, Conn, L. J. Vol. XL, no. 51,

p. 20 (June 19, 1979) (Peters, J., dissenting), cert. denied,

— US. ——, 62 L. Ed. 2d 320 (1980) (App. p. 15A).

Petitioner’s application for habeas corpus relief was dis-

missed by the United States District Court, District of

Connecticut, in an unreported opinion on June 10, 1980

(App. p. 3A). Thereafter, the United States Court of Ap-

peals affirmed the District Court’s dismissal in an unre-

ported opinion on August 20, 1980 (App. p. 14).

Jurisdiction

The opinion of the United States Court of Appeals for

the Second Circuit was entered on August 20, 1980. Juris-

diction of this Court is invoked pursuant to 28 U.S.C.

§1254(1).

Constitutional Provisions and Statutes

U.S. Const., Amend. V:

“No person shall... be subject for the same offense

to be twice put in jeopardy of life or limb... .”

U.S. Const., Amend. XIV:

“...No state shall... deprive any person of life,

liberty, or property, without due process of law....”

18 U.S.C. §371. Conspiracy to commit offense or to de-

fraud United States

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than five years,

or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the punish-

ment for such conspiracy shall not exceed the maximum

punishment provided for such misdemeanor. June 25, 1948,

ce. 645, 62 Stat. 701.

18 U.S.C. § 1952. Interstate and foreign travel or trans-

portation in aid of racketeering enterprises

(a) Whoever travels in interstate or foreign commerce

or uses any facility in interstate or foreign commerce, in-

cluding the mail, with intent to—

(1) distribute the proceeds of any unlawful activity ;

(2) commit any crime of violence to further any un-

lawful activity; or

(3) otherwise promote, manage, establish, carry on,

or facilitate the promotion, management, establishment,

or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the

acts specified in subparagraphs (1), (2), and (3), shall be

fined not more than $10,000 or imprisoned for not more

than five years, or both.

(b) As used in this section “unlawful activity” means (1)

any business enterprise involving gambling, liquor on which

the Federal excise tax has not been paid, narcotics or con-

trolled substance (as defined in section 102(6) of the Con-

trolled Substances Act), or prostitution offenses in violation

of the laws of the State in which they are committed or of

the United States, or (2) extortion, bribery, or arson in

violation of the laws of the State in which committed or of

the United States.

volving liquor shall be conducted under the supervision of

the Secretary of the Treasury, As amended Pub.L. 91-513,

Title II, §701(i) (2), Oct. 27, 1970, 84 Stat. 1282.

Conn. G.S. § 53a-35. Imprisonment for felony: Indetermin-

ate; maximum and minimum sentences

(a) A sentence of imprisonment for a felony shall be an

indeterminate sentence, except as provided in subsection

(d). When such a sentence is imposed, the court shall im-

pose a maximum term in accordance with the provisions

of subsection (b) and the minimum term shall be as pro-

vided in subsection (c) or (d).

(b) The maximum term of an indeterminate sentence

shall be fixed by the court and specified in the sentence as

follows:

(1) For a class A felony, life imprisonment;

(2) for a class B felony, a term not to exceed twenty

years;

(3) for a class C felony, a term not to exceed ten

years;

(4) for a class D felony, a term not to exceed five

years;

(5) for an unclassified felony, a term in accordance

with the sentence specified in the section of the general

statutes that defines the crime; and

(6) for a capital felony, life imprisonment unless a

sentence of death is imposed in accordance with section

53a-46a.

term of an indeterminate sentence shall be fixed by the

court and specified in the sentence as follows:

(1) For a class A felony, the minimum term shall

not be less than ten nor more than twenty-five years;

(2) for a class B, C or D felony the court may fix a

minimum term of not less than one year nor more than

one-half of the maximum term imposed, except that

(A) where the maximum is less than three years the

minimum term may be more than one-half the maximum

term imposed or (B) when a person is found guilty

under section 53a-59(a)(1), section 1 of this act,’ 53a-

101(a)(1) or 538a-134(a)(2), the minimum term shall

be not less than five years and such sentence shall not

be suspended or reduced, or when a person is found

guilty under section 3 of public act 77-422,’ the minimum

term shall be not less than three years and such sen-

tence shall not be suspended or reduced, or when a per-

son is found guilty under section 2 of public act 422,*

the minimum term shall be not less than two years and

such sentence shall not be suspended or reduced;

(3) for an unclassified felony, a term in accordance

with the sentence specified in the section of the general

statutes that defines the crime.

(d) Notwithstanding the provisions of subsections (a)

and (c), except as provided in subdivision (2) of said sub-

section (c), when a person is sentenced for a class C or D

felony or for an unclassified felony, the maximum sentence

for which does not exceed ten years, the court may impose

a definite sentence of imprisonment and fix a term of one

year or less; except when a person is found guilty under

sections 53a-55, 53a-56a, 53a-60, 53a-70a, 59a-72b, 53a-92a,

53a-94a, 53a-102a and 53a-103a, the court shall not fix a term

of less than one year.

(1973, P.A. 73-187, §8; 1974, P.A. 74-186, §9, eff. May 13,

1974; 1975, P.A. 75-880, § 14; 1975, P.A. 75-411, §3; 1976,

~ P.A. 76-435, § 2, eff. June 9, 1976; 1977, P.A, 77-422, § 5.)

Conn. G.S. §53a-48. Conspiracy. Renunciation as affirma-

tive defense

(a) A person is guilty of conspiracy when, with intent

that conduct constituting a crime be performed, he agrees

with one or more persons to engage in or cause the per-

formance of such conduct, and any one of them commits an

overt act in pursuance of such conspiracy.

(b) It shall be a defense to a charge of conspiracy that

the actor, after conspiring to commit a crime, thwarted the

success of the conspiracy, under circumstances manifesting

a complete and voluntary renunciation of his criminal pur-

pose.

(1969, P.A. 828, §§ 48, 49, eff. Oct. 1, 1971; 1971, P.A. 871,

§ 16.)

Conn. G.S. § 53a-112. Arson in the second degree. Class C

felony

(a) A person is guilty of arson in the second degree when

he starts a fire or causes an explosion:

(1) With intent to destroy or damage a building

(a) of another, or

(b) whether his own or another’s, to collect in-

surance for such loss; and

(2) such act subjects another person to a substantial

risk of bodily injury or another building to a substan-

tial risk of destruction or damage.

(b) Arson in the second degree is a class C felony.

(1969, P.A.8 28, § 114, eff. Oct. 1, 1971.)

Conn. G.S. §53a-113. Arson in the third degree: Class D

felony

(a) A person is guilty of arson in the third degree if he

recklessly causes destruction or damage to a building of his

own or of another by intentionally starting a fire or causing

an explosion.

(b) Arson in the third degree is a class D felony.

(1973, P.A. 73-639, § 6.)

Statement of the Case

In May of 1975 petitioner was indicted on four federal

charges, including one charge of conspiracy to commit ar-

son in violation of 18 U.S.C. §371, §1952 and Section 53a-

113 of the Connecticut General Statutes, in addition to

three other charges. After a fourteen week trial, he was

acquitted of all charges on January 22, 1976. See, United

States v. Bubar, 567 F.2d 192, n.4 (1980) ; State v. Moeller,

178 Conn. . A.2d ——, Conn. L. J. Vol. XL, no.

5i, p. 20 (June 19, 1979) (Peters, J., dissenting), cert.

denied, —— U.S. ——, 62 L.Ed. 2d 320 (1980). At trial

the only disputed issue was whether Mr. Moeller was in-

volved in the plan to commit the arson. Obviously the

jury found he was not. Eight of the other individuals in

the trial were convicted and were duly sentenced.

On May 3, 1977, Mr. Moeller was charged in Superior

Court, Fairfield County at Bridgeport with conspiracy to

commit arson in the first and second degrees, in violation

of Connecticut General Statutes Annotated §53a-48 (the

conspiracy statute) and §53a-111 and 112 (Arson in the.

First Degree and Arson in the Second Degree). The con-

spiracy to commit arson in the first degree has now been

voluntarily dropped by the State, and Mr. Moeller now

stands charged under a substituted information, alleging

only conspiracy to commit arson in the second degree

(C.G.S.A. §53a-112).

Petitioner, at his federal trial, faced a maximum sentence

of thirty years (five years each for alleged violations of

18 U.S.C. §371 and §1952; and 10 years each for the two

alleged violations of 18 U.S.C. §844). At the state trial

he faces a maximum imprisonment of five to ten years. See

C.G.S.A. §53a-35(c), providing that a minimum term must

be set by the Court.

In 1977, Mr. Moeller moved in the Superior Court of

the State of Connecticut to dismiss the information on

double jeopardy, due process and collateral estoppel

grounds. The motion was denied on December 21, 1977

in an unreported decision. The Supreme Court of Con-

necticut affirmed. State v. Moeller, 178 Conn. ;

A.2d ——, Conn. L. J. Vol. XL, no. 51, p. 20 (June 19,

1979) (Peters, J., dissenting), cert. denied, —— U.S. —,

62 L.Ed.2d 320 (1980). Justice Peters, in dissent, noted

that no discernible prosecutorial interest existed in the

case, owing to the investigative cooperation between state

and federal authorities.

Petitioner then filed an application for a writ of habeas

corpus in the United States District Court, District of

Connecticut, pursuant to 28 U.S.C. §2254. The writ al-

leged that a state information filed against petitioner vio-

lated his constitutional right not to be put twice in jeopardy

for the same offense, denied him his right to due process

of law and violated constitutionally-based principles of

collateral estoppel, since he had been acquitted of the

same charges by a federal jury.

After dismissing the writ in a Memorandum of Decision

on May 30, 1980 (filed on June 10, 1980), United States

District Court Judge Ellen Bree Burns signed a Certificate

of Probable Cause to Appeal. Petitioner duly appealed to

the United States Court of Appeals for the Second Cir-

cuit and subsequently moved to have this case heard on

an expedited basis. The Court of Appeals affirmed the

District Court’s dismissal.

Reasons for Granting Petition

The Court of Appeals in this case has decided an im-

portant question of federal law which has not been but

should be settled by this Court; that is, the scope of the

due process clause in state criminal prosecutions which

follow previous federal trial acquittals for the same acts

where the interests of the two sovereigns may be identical.

The decision of the Court of Appeals is also in conflict

with recent decisions of this Court. Additionally, this Court

has not yet considered the doctrine of collateral estoppel

in such situations. Petitioner also suggests that this Court

reconsider its decision in Bartkus v. Illinois, 359 U.S. 121

(1959). |

A. Decisions of this Court Indicate that In Situations Where

the Interests of the State and Federal Governments are

Identical, the Due Process Clause Should Bar a State Trial

Following a Federal Acquittal for the Same Acts.

In Bartkus v. Illinois, 359 U.S, 121 (1959) Mr. Justice

Frankfurter, speaking for a five Justice majority! stated

1 Although there were four Bartkus dissenters, only Justices

Black, Douglas and Warren dissented on due process grounds. Mr.

Justice Brennan dissented because he felt the record established

that the second state prosecution was federally directed.

that the Fifth Amendment ban on successive prosecutions

did not apply to the States. The Court further held that

“precedent, experience, and reason alike support the con-

clusion that Alphonse Bartkus has not been deprived of

due process of law.” 359 U.S. at 39.

In reaching its decision, the Bartkus court examined a

number of elements. Initially, the court considered the

historical concept of the due proces: clause:

(I)t was a flexible concept, responsive to thought and

experience—experience which is reflected in a solid

body of judicial opinion, all manifesting deep convic-

tions to be unfolded by a process of inclusion and ex-

clusion. Davidson v. New Orleans, 96 U.S. 97, 104

(1878).

The relevant standard, said the Bartkus court, was whether

the practice complained of was “repugnant to the conscience

of mankind”. 359 U.S. at 689, citing Palko v. Connecticut,

302 U.S. 319, 323 (1937). The Bartkus court examined the

“halancing” process necessary in applying the due process

clause, 359 U.S. at 128, and noted:

The Anglo-American system of law is based not upon

transcendental revelation but upon the conscience of

society ascertained as best it may be by a tribunal dis-

ciplined for the task and environed by the best safe-

guards for disinterestedness and detachment.

The Court also examined what it termed a “practical

justification” for rejecting Bartkus’ plea: that prosecu-

tion for a minor federal offense might bar prosecution by

a state for a major felony. Justice Frankfurter used the

example of Screws v. United States, 325 U.S. 91 (1945)

where the federal crimes carried maximum penalties of

one and two years, while the corresponding state crime

¢%

was a capital offense. 359 U.S. at 136-37. He also noted

that Illinois had an additional interest in Bartkus; i.e.,

that state’s habitual offender statute. 359 U.S. at 137 n.25.

Bartkus faced a twenty year penalty under federal law;

under state law he was sentenced to life imprisonment,

Justice Frankfurter ended his opinion with a brief exam-

ination of relevant state statutes and concluded that the

task of determining when state administration of justice

would not be interfered with was a difficult task. He then

concluded that owing to “precedent, reason and experience”

there was no violation of due process in Bartkus’ case.

In Benton v. Maryland, 395 U.S. 784 (1969), this court

held that the Double Jeopardy Clause of the Fifth Amend-

ment was applicable to the states through the Fourteenth

Amendment, overruling Palko, supra. (Part of the Bartkus

hole’ng, of course, was also that the Double Jeopardy

Clause of the Fifth Amendment did not apply to the states.)

Mr. Justice Harlan expressed his chagrin at what he

perceived to be “a complete overruling of one of this

court’s truly great decisions”. 395 U.S. 808. In this dis-

sent, he stated how he would analyze successive prosecu-

tions under the Due Process Clause:

The principle that an accused should not be tried twice

for the same offense is deeply rooted in Anglo-Ameri-

can law. ... The Palko court found it unnecessary

to decide “(w)hat the answer would have to be if

the state were permitted after a trial free from error

to try the accused over again or to bring another

case against him.” 302 U.S. at 328. However, I have

no hesitation in stating that wi would be a denial of

due process to retry one previously acquitted follow-

ing an errorless trial. The idea that the state’s in-

terest in convicting wrongdoers is entirely satisfied by

one fair trial ending in acquittal, and that the ac-

cused’s interest in repose must thereafter be given

precedence, is indubitably a “principle of justice so

rooted in the traditions and conscience of our people

as to be ranked as fundamental.” Jd. at 325.

395 U.S. 810 (emphasis added).

It is difficult to understand why this reasoning does not

apply to the case now before the court, at least insofar

as the balancing of interests mentioned in Bartkus is con-

cerned. Petitioner-Appellant does realize that balanced

against the “accused’s interest in repose” is the additional

interest which one sovereign might have over the other in

a particular act. But when those state and federal interests

are the same, then the due process balance compels a bar

to a second prosecution.

In Abney v. United States, 431 U.S. 651 (1977), which

allowed an appeal of a denial of a motion to dismiss based

on double jeopardy grounds to be taken before trial, Chief

Justice Burger noted the harm to the individual against

which the Double Jeopardy Clause protects:

(T)his Court has long recognized that the double jeop-

ardy clause protects an individual against more than

being subjected to double punishments. It is a guar-

antee against being twice put to trial for the same

offense.

Id, at 661. Accord, United States v. Jorn, 400 U.S. 470,

479 (1971).

This notion embraces traditional notions of fairness. In

Green v, United States, 355 U.S. 184, 187-88 (1957), Justice

Black noted:

The underlying idea, one that is decply ingrained in at

least the Anglo-American system of jurisprudence, is

that the state with all its resources and power should

not be allowed to make repeated attempts to convict

an individual for an alleged offense, thereby subjecting

him to embarrassment, expense and ordeal and com-

pelling him to live in a continuing state of anxiety and

insecurity, as well as enhancing the possibility that

even though innocent, he may be found guilty.

See also, Breed v. Jones, 421 U.S. 519, 528-30 (1972).

The ordeal of two trials for a single act extends beyond

parameters of the Double Jeopardy Clause. If no purpose

is served by a second trial other than a second attempt to

convict petitioner, the Due Process Clause should act to bar

that second trial.

In Ashe v. Swenson, 397 U.S. 436 (1970), the Court de-

cided that the Double Jeopardy Clause embraced the doc-

trine of criminal collateral estoppel. In Ashe, the petitioner

was charged and tried separately for a single robbery of

six men at a poker game. He was acquitted of the robbery

of three men, evidently on grounds that he was not a par-

ticipant. He was convicted of the robbery of a .ourth card-

player at a subsequent trial. In reversing his conviction,

the Court rejected the idea that “fundamental fairness”

was the appropriate test to apply in the situation before

the court.

The Ashe case overruled Hoag v. New Jersey, 356 U.S.

U.S. 464 (1958), a case with facts strikingly similar to those

in Ashe. Hoag had held (much like Bartkus) that the

Double Jeopardy Clause did not apply to the states, and,

much like Bartkus, stated:

It has long been recognized as the very essence of

federalism that the states should have the widest lati-

tude in the administration of their own systems of

criminal justice.

356 U.S. at 467.

The Court also relied on the refusal of numerous state

courts to follow the doctrine. Jd. at 472.

Ashe, reversing Hoag, imposed a requirement that the

record be examined to determine whether issues which had

been determined by the first jury in a defendant’s favor

would be necessary to show a defendant’s guilt at a second

trial. But examination of the record in cases decided before

Ashe under the Hoag test was thought to be proper. Peti-

tioner suggests that this examination of the record is also

proper pursuant to Bartkus.

In the Court of Appeals decision in Ashe, 399 F.2d 40

(8th Cir. 1968), Mr. Justice (then Judge) Blackmun ex-

pressed his dissatisfaction with the Hoag rationale, but felt

he was unable to reverse the case owing to the specific hold-

ing of the Supreme Court. 399 F.2d at 45. He did, however,

in spite of the then “existing fiat” examine the record to

determine if due process was violated in the individual case,

The Ashe Court of Appeals decision lists seven factors

in its affirmance of Ashe’s conviction:

1, The continuing viability of Hoag;

2. The fact that the Missouri statute in Ashe placed

emphasis on the individual victim ;

3. The criminal action concerned more than a single act

of taking;

4. Personal indignities imposed on individual victims

were different;

5. The treatment of each robbery as a second crime was

not fundamentally unfair;

6. The first acquittal could not be said with certainty to

be based on Ashe’s identity ; and

7. Ashe’s was a stronger case for prosecution than

Hoag’s.

399 F.2d at 45-46.

It should be noted that then Judge Blackmun felt com-

pelled to “carefully read” the transcripts of both trials.

Petitioner’s suggestion here is that the District Court should

have examined the record to determine whether seemingly

distinct interests of the state and federal governments are

actually the same.

The similarities between Hoag and Bartkus are striking.

Both cases concerned a refusal to extend Fifth Amendment

protection to the states ; both cases involved double jeopardy

related issues; both cases involved a due process rationale ;

both cases expressed concern for principles of federalism;

and both balanced state and individual rights. If an exam-

ination regarding fairness was proper under the now de-

mised Hoag principles, it is difficult to determine why this

is not so under a Bartkus rationale.

Cases fter Ashe also do not disregard a fairness ap-

proach. In United States v. Mespoulede, 597 F.2d 329, 330

(2d Cir. 1979), the United States Court of Appeals for the

Second Circuit stated, in a collateral estoppel case. that:

We believe that once a defendant has satisfied one jury

that he is not guilty of a crime, constitutionally-rooted

considerations of fairness preclude the government

from injecting any issues necessarily decided in his

favor into a second trial for another offense.

While Mespoulede was based on the Double Jeopardy

Clause and this case may not be, petitioner respectfully

asserts that at least similar considerations of fairness apply

to him.

This Court in Bartkus examined the specific interests

of the sovereignties involved. Two recent Supreme Court

cases construing Bartkus have also examined those inter-

ests, strongly indicating that this is a proper way to pro-

ceed when faced with a dual sovereignty question. Both

decisions examine closely the interests of the two sover-

eigns present in each case.

In Rinaldi v. United States, 434 U.S. 22 (1977), the

court was faced with a construction of the so-called Petite

Policy. Rinaldi had been convicted in state court of rob-

bery under the state statute and was subsequently tried

and convicted in federal court under the Hobbs Act after

the Assistant United States Attorney had assured the

District Court judge that the Petite Policy requirement of

authorization by the Justice Department prior to the fed-

eral prosecution had been followed. In fact, proper au-

thorization had not been received, and the government,

joined by the defendant, moved to dismiss. In holding that

the District Court should have granted the motion, the

Rinaldi court examined Bartkus and Abbate v. United

States, 359 U.S. 187 (1959). The Court stated:

2 Petite v. United States, 361 U.S. 529, 580 (1960): “(I)t is the

general policy of the Federal Government ‘that several offenses

arising out of a single transaction should be alleged and tried to-

gether and should not be made the basis of multiple prosecutions,

a policy dictated by considerations both of fairness to defendants

and of efficient and orderly law enforcement.’ The Solicitor Gen-

eral on behalf of the Government represents this policy as closely

related to that against duplicating federal-state prosecutions, which

was formerly defined by the Attorney General of the United States

in a memorandum to the United States Attorneys. (Department

of Justice Press Release, Apr. 6, 1959.)”

As these decisions recognize, in our federal system

the state and federal governments have legitimate, but

not necessarily identical, interests in the prosecution

of a person for acts made criminal under the laws of

both. These cases reflect the concern that if the Double

Jeopardy Clause were applied when the sovereign with

the greater interest is not the first to proceed, the

administration of criminal justice may suffer. Bartkus

v. Illinois, supra, at 137; Abate v. United States, supra,

at 195 (emphasis added).

Petitioner-Appellant submits that this view of the con-

cern which Bartkus reflects is correct. That is, the recog-

nition that if the interests of the two sovereigns are not

identical, the interest in the administration of criminal

justice might outweigh the “unfairness that is associated

with multiple prosecutions”. 434 U.S. at 27. On the other

hand, the recognition of the unfairness of multiple prose-

cutions when both sovereigns have the same interest in

prosecuting particular conduct is manifest in the opinion.

(It should be noted that the Court described the Petite

Policy as useful for the efficient management of limited

prosecutorial resources and for encouraging responsibility

in local law enforcement. But the court described the pro-

tection of the individual from unfairness as “more impor-

tant” than these two considerations. )

The Rinaldi Court noted the Court’s concern with the

possible unfairness inherent in the power for successive

prosecutions. That it did not consider the power of the

prosecution to be totally unfettered seems apparent. The

Court stated, quoting from Bartkus:

Yet, mindful of the potential for abuse in a rule per-

mitting duplicate prosecutions, the Court noted that

-*%

“(t)he greatest self-restraint is necessary when that

federal system yields results with which a court is

in little sympathy. Bartkus v. Illinois, supra, at 138.

434 U.S. at 28.

Thus, Rinaldi certainly indicates that some monitoring

of successive state-federal prosecutions is necessary. This

was further recognized (and the interpretation of Rartkus

urged herein further validated) when the Court noted that:

The Petite Policy was designed to limit the exercise

of the power to bring successive prosecutions for the

same offense to situations comporting with the ra-

tionale for the exercise of that power.

434 U.S. at 9.

Thus, this Court apparently stated that some situations

do not comport with the rationale for the exercise of the

multiple prosecution power. Since that rationale is based

on different interests, it appears that some evaluation of

those interests is necessary. Rinaldi states that the Ex-

ecutive Petite Policy is “not constitutionally mandated”.

The Court does, however, describe the Petite Policy and

“the fundamental constitutional guarantees against double

jeopardy” as having parallel purposes, and it would be

difficult to argue that an interest analysis of successive

prosecutions is simply prohibited by Bartkus.

It would be somewhat anomalous if the Supreme Court

refused to allow the lower federal courts to share in its

“continuing sensitivity to the fairness implications of the

multiple prosecution power”, 434 U.S. at 28.

In United States v, Wheeler, 435 U.S. 313 (1978), a

unanimous court reaffirmed the Bartkus decision in a case

involving the issue of whether successive prosecutions in

an Indian tribal court and a United States District Court

were prosecutions by the same sovereign. In holding that

they were not, the Court analyzed Bartkus and Abbate

in terms of whether the dual prosecutions subject an in-

dividual to prosecution for the same offense for double

jeopardy purposes, 435 U.S. at 317-18, and in terms of

the interests of the different sovereigns, 435 U.S. at 318,

n. 8.

Petitioner suggests that the “same offense” test in a

dual sovereignty case is a Fifth Amendment double jeop-

ardy standard. The Court held that laws of different

sovereigns are different offenses, That the Wheeler Court

also felt obliged to point out the possible differing inter-

ests of the two sovereigns is, as has been noted earlier,

the relevant due process inquiry. The Wheeler opinion

tracks the order of the Bartkus opinion, i.e., first con-

sidering double jeopardy grounds and then examining the

due process prosecutorial interest

Petitioner concedes that under Bartkus it is apparent

that he cannot assert a simple double jeopardy bar to the

state court prosecution after his federal acquittal. Peti-

tioner contends, however, that the federal courts are not

precluded from considering the fairness implications of his

plight.

This is evident from the manner in which the Wheeler

Court analyzed the problem before it. After noting that

the Double Jeopardy Clause did not bar successive prosecu-

tions by different sovereigns (owing to the different offense

test mentioned above) the Court proceeded to define the

concept of differing sovereignties. The Court held that the

test was whether the source of the power to punish was

separate or whether it was created by another single gov-

ernmental entity. Since the tribal sovereignty was inherent

rather than delegated by the Federal Government, the

Indian tribes were held to be separate sovereignties.

If the dual sovereignty/double jeopardy analysis were

conclusive of the issue, the Wheeler opinion would have

ended with the words:

Since tribal and federal prosecutions are brought by

separate sovereigns, they are not “for the same of-

fense”, and the Double Jeopardy Clause thus does not

bar one when the other has occurred.

435 U.S. at 329-30.

The Wheeler opinion, however, adds a section. Section

IV of the opinion proceeds to examine the differing inter-

ests of the Tribal courts and the Federal Government. The

interests appear to be, on the one hand, that major federal

crimes might be punished with minor tribal sentences, and

on the other hand, the tribal interest in preserving Indian

customs, 435 U.S. at 331. The Court specifically pointed

to Wheeler who had received a tribal sentence of 75 days

and a small fine, but faced a federal sentence of up to 15

years in prison.

lf a mere assertion that double jeopardy permits succes-

sive prosecutions by different sovereignties is sufficient to

preclude court examination of the interests of the sover-

eigns, then the examination of the interests of the two

sovereignties in Wheeler would have been unnecessary. If

a simple statement that the Double Jeopardy Clause per-

mits a state to prosecute a citizen a second time for an act

of which a federal jury has acquitted him suffices the

Rinaldi Court was wrong in characterizing the existence of

differing interests of different sovereignties as the under-

lying rationale for the existence of the multiple prosecution

power. If the interests of the sovereigns are the same in a

given case, then considerations of fundamental fairness

necessitate a limit on dual prosecutions in that case.

B. The Doctrine of Collateral Estoppel Should Also Be Held

to Bar This Prosecution.

In Ashe v. Swenson, 397 U.S. 436 (1970), the Court held

that the doctrine of collateral estoppel was embodied in

the Fifth Amendment’s guaranty against Double Jeopardy

and that under Benton was applicable against the states.

The doctrine was thusly described: “It means simply

that when an issue of ultimate fact has once been deter-

mined by a valid and final judgment, that issue cannot

again be litigated between the same parties in any future

lawsuit.” Ashe, 397 U.S. at 443.

The doctrine, being first developed civilly, had been

clearly applicable to federal criminal situations, since

United States v. Oppenheimer, 242 U.S. 85 (1916), in which

Justice Holmes said: “It cannot be that the safeguard

of the person, so often and so rightly mentioned with sol-

emn reverence, are less than those that protect from a lia-

bility in debt.” Jd. at 87, quoted in Ashe at 443.

It was also made clear in Ashe that “the rule of collateral

estoppel in criminal cases is not to be applied with the

hypertechnical and archaic approach of a 19th century

pleading book, but with realism and rationality.” Ashe,

supra, at 444,

The case at bar would be directly governed by Ashe if

it were not for the fact that there are ostensibly different

parties on the prosecutorial side. However, the parties to

the lawsuit need not be identical in order that the doctrine

be applied with “realism and rationality.” For example,

in Ashe, Chief Justice Burger noted that the doctrine

“ordinarily applies to parties on each side of the litigation

who “have the same interest as or who are identical with

the parties in the initial litigation.” Ashe, 397 U.S. at 464

(dissenting opinion) (emphasis added).

The notion of identity of parties is also called “privity”

of parties in much of the civil discourse on collateral estop-

pel and res judicata and the Restatement, Judgments

(1942), in §83, after noting the obvious truth that one in

privity is bound, notes in the comment: “The word ‘privy’

includes those .. . whose interests are represented by a

party to the action... .”

Once it is noted that the doctrine (a) constitutionally

bars relitigation of the same ultimate fact and (b) is prop-

erly to be invoked against parties with the same interest

in the litigation of that fact or facts, its meaning for this

case is clear. The State’s interest was identical to and was

protected by the federal government in a trial over three

months long in which the issue of defendant’s conspiring

as to this fire was resolved against it.

The claim is brought full circle when one accepts that

the double jeopardy protection is intended as a fundamental

protection for the individual rather than a prosecution

seeking an historically abhorred second bite at the same

apple.

C. Bartkus vy. Illinois and Its Dual Sovereignty Doctrine Have

Been So Eroded as to Be Without Valid Force.

Bartkus v. Illinois, 359 U.S. 121 (1959), in a 5-4 decision,

held that an acquittal on a prior federal charge of bank

robbery was not a bar to a successive Illinois state prose-

cution for the same act. The opinion of the bare majority

had dual bases, one of which has been specifically and

totally destroyed, while the other has been so eroded as to

deserve the same fate.

Tn the majority opinion, Justice Frankfurter rejected the

defense of the Double Jeopardy clause first because of the

Fifth Amendment itself was not binding, through lack of

incorporation into the Fourteenth Amendment’s Due Proc-

ess clause, against the States. The foundation for said

rejected was Palko v. Connecticut, 302 U.S. 319 (1937),

holding that a state prosecution was not prohibited by the

Fourteenth Amendment’s Due Process clause unless it was

“repugnant to the conscience of mankind.” * The second

basis for the Bartkus holding was the concept of “dual sov-

ereignty” under which two policy justifications were offered.

First, if state prosecutions were barred by prior federal

trials, state law enforcement would be hampered. Second,

it was stated that the refusal to declare a constitutional bar

would permit the states to develop their own “rational and

just body of criminal law in the prosecution of its citizens.”

Bartkus, 359 U.S. at 137-38.

The first rationale of Bartkus, the inapplicability of the

Double Jeopardy clause of the Fifth Amendment, fell with

Benton v. Maryland, 395 U.S. 784 (1969). The Court ex-

pressly overruled Palko, the strong lynchpin of Bartkus:

“... [W]e today find that the double jeopardy pro-

hibition of the Fifth Amendment represents a funda-

mental ideal in our constitutional heritage, and that

it should apply to the States through the Fourteenth

Amendment. Insofar as it is inconsistent with this

holding, Palko v. Connecticut is overruled.”

Benton, 395 U.S. at 794,

§ Palko, 302 U.S. at 323, quoted in Bartkus, 359 U.S. at 127.

Of that “fundamental ideal,” Benton, quoting from Green

v. United States, 355 U.S. 184 (1957) said:

“(T]he underlying idea, one that is deeply ingrained

in at least the Anglo-American system of jurispru-

dence, is that the State with all its resources and power

should not be allowed to make repeated attempts to

convict an individual for an alleged offense, thereby

subjecting him to embarrassment, expense and ordeal

and compelling him to live in a continuing state of

anxiety and insecurity as well as enhancing the possi-

bility that even though innocent he may be found

guilty.” *

The lack of viable content remaining in Bartkus can be

seen by scrutinizing the other basis for its holding, the

“dual sovereignty” doctrine. There had been life to dual

sovereignty in areas other than the power to successively

prosecute and in those areas the rights of the individual

have since been held to prevail over what were clearly no-

tions of dual sovereignty, and the abuses formerly per-

mitted in its name.

Prior to 1960, the federal government was free to use

evidence illegally seized by State officials, so long as federal

authorities did not participate in the illegal activity. Lustig

v. United States, 338 U.S. 74 (1949). The dual sovereignty

doctrine inherent in this “silver patter” concept was effec-

tively abolished in Elkins v. United States, 364 U.S. 206

(1960), where the Court prohibited the introduction of

47d. at 796. Justice Brennan has recently elaborated on the

prospect of a second trial enhancing the risk of convicting the inno-

cent, pointing to prosecutorial opportunity to assess weaknesses in

the first trial and the frequent occurrence that “prosecution wit-

nesses change their testimony, not always subtly, at second trials.”

United States v. Scott, 487 U.S. 82, 105 (1978) (dissenting opinion,

n. 4).

illegally seized State evidence in federal courts. “... To

the victim it matters not whether his constitutional right

has been invaded by a federal agent or by a state officer.”

Id. at 215. Additional damage was done to the principle

when Mapp v. Ohio, 367 U.S. 643 (1961) covered the reverse

order of events. Evidence seized illegally by federal officials

was ruled inadmissible in state prosecutions.

Similarly, notions of dual sovereignty once held sway

under the Fifth Amendment’s self-incrimination clause. A

State court was free to use testimony obtained by the fed-

eral government under a grant of federal immunity. United

States v. Murdock, 284 U.S, 141 (1931). The federal gov-

ernment was likewise free to introduce evidence obtained

from testimony given before a State grand jury under a

grant of State immunity. Feldman v, United States, 322

U.S. 487 (1944).

However, in Murphy v. Waterfront Commission, 378 U.S.

52 (1964), the Court, noting the rejection in Elkins, supra,

of the dual sovereignty doctrine as a reason to allow ille-

gally State-seized evidence in federal courts, ended any

prospect for the doctrine of dual sovereignty to justify

incrimination in one jurisdiction through immunized com-

pelled testimony in the other. The Murphy Court noted that

the constitutional policies involved, written to protect the

individual, “are defeated when a witness ‘can be whipsawed

into incriminating himself under both state and federal law

even though’ the constitutional privilege against self-

incrimination is applicable to each.” Murphy, supra, at 55,

quoting Justice Black’s dissent in Knapp v, Schweitzer, 357

U.S. 371, 385 (1958). The same, discredited “whipsaw” re-

mains running smoothly if Bartkus continues to permit a

second trial by another jurisdiction when each would be

prohibited by the Double Jeopardy clause from so acting

alone.

The parallels between that which Elkins and Murphy

barred and what petitioner here seeks to enjoin are com-

pelling. Those cases rather clearly destroy the doctrinal

foundation of Bartkus, by allowing defendants in one juris-

diction to assert their constitutional rights in decrying ac-

tions by authority in the other jurisdiction, without having

those rights overridden by the abstract concept of dual

sovereignty. Both Elkins and Murphy, unlike Bartkus, em-

phasized the effect upon the individual as did Justice

Black’s dissent in Bartkus. Further, there was expressed

a recognition that the two jurisdictions are hardly separate

and independent “in our age of ‘cooperative federalism,’

where the Federal and State Governments are waging a

united front against many types of criminal activity.” Mur-

phy, 378 U.S. at 56.

The Murphy Court held that its decision in Malloy v.

Hogan, 378 U.S. 1 (1964), applying the privilege against

self-incrimination to the States, compelled reconsideration

of the “established rule” that the constitutional privilege

did not protect a witness in one jurisdiction against the

compulsion to give testimony that could be used to convict

him in another jurisdiction. Murphy, 378 U.S. at 57. The

same consideration obtains here. The Court’s decision in

Benton, supra, enforcing the Double Jeopardy guaranty

against the States, necessitates a similar review of the

established rule that a federal trial resulting in conviction

or acquittal raises no bar to subsequent State trial for

the same offense or conduct. As the Court recognized in

Ashe v. Swenson, 397 U.S. 486 (1970), “... Benton... puts

the [Double Jeopardy issue] ... in a perspective quite

different from that in which the issues were perceived”

when only considerations of Fourteenth Amendment due

process were thought pertinent. 7d. at 442.

By 1966, Justices, Harlan and Stewart, part of the

Bartkus majority, were of the opinion that Murphy had

destroyed the notion of dual sovereignty: “In addition,

this Court has recently extended the Fifth Amendment to

the states, (citing Malloy), and abolished the “two sov-

ereignties’ rule (citing Murphy)... .’ Stevens v. Marks,

382 U.S. 234, 250 (1966), (Justice Harlan, whom Justice

Stewart joined, concurring in part and dissenting in part).

Similarly, regarding the effect of Benton on the doctrine,

Justice Douglas commented as a Circuit Justice, in 1975

that: “Benton may cast doubt upon the continuing vitality

of Bartkus v. Illinois,... .” Smith v. United States, 423

U.S. 1303, 1807 (1975),

Also, Waller v, Florida, 397 U.S. 387 (1970), saw the

Court unanimously reject the State’s Bartkus-based claim

that it was permitted to successively prosecute after a

municipal conviction for the same conduct, despite that

Florida’s argument was constitutional doctrine in at least

21 states. Id. at 391, n. 3.

It seems the Court has, since Bartkus, remedied those

intra-trial abuses brought to it regarding evidence (Elkins)

and testimony (Murphy) whereby two sovereigns might

have been able to accomplish in concert what neither could

do alone. Now the Court is asked to close the circle in

response to a constitutional right that addresses the im-

propriety of the trial itself. Here, as in the post-Bartkus

cases, the abstraction of federalism and its rather short-

lived progeny, dual sovereignty, should not be permitted

to totally override a constitutional protection fashioned

for the individual.

CONCLUSION

For the reasons stated above, this court should grant

certiorari in this case to review the questions presented

herein.

Respectfully submitted,

Txropore I. Koskorr

Ricuarp A. Fucus

Kosxorr, Kosxorr & Bieper, P.C.

55 Chapel Street

Bridgeport, Connecticut 06604

(203) 336-4421

Attorneys for Petitioner

Certificate of Service

This is to certify that three (3) copies of the foregoing

Petition for Writ of Certiorari were mailed, postage pre-

paid, on this ............ NT OIE iicieccaisntnechictel , 1980, to Counsel

for the Respondents, Donald A. Browne, Bernard Luckart

and Victor Liburdi: Donald A. Browne, Esquire, State’s

Attorney, 1061 Main Street, Bridgeport, Connecticut 06604.

Ricwarp A. Fucus

APPENDIX

——_———

Appendix ‘A”’

(Order of United States Court of Appeals)

UNITED STATES COURT OF APPEALS

Seconp CrrovitT

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the twentieth day

of August, one thousand nine hundred and eighty.

Present:

HonorasBteE Amaya L. Kearse, Circuit Judge,

Honoraste Cartes R. Layton, III, District Judge,*

HonorastE Epwarp DumBavutp, District Judge.**

80-2181

Cuarues D. Moe.ier,

Petitioner-A ppellant,

—

Donatp A. Browns, et al.,

Respondents-Appellees.

Appeal from the United States District Court for the

District of Connecticut.

* Senior Judge of the United States District Court for the Dis-

trict of Delaware, sitting by designation.

** Senior Judge of the United States District Court for the

Western District of Pennsylvania, sitting by designation.

Appendia “A”

This cause came on to be heard on the transcript of

record from the United States District Court for the Dis-

trict of Connecticut, and was argued by counsel.

On ConsmeraTION Wuenreor, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and is hereby is ArrmMep substantially for the

reasons given in the opinion of Judge Burns, dated May 30,

1989.

/s/ Amatya L. Kearse

Circuit Judge

/s/ Cates R. Layton, IIT

District Judge

/s/ Eywarp DumBavuLpD

District Judge

Unirtep States Court or APPEALS

SECOND CIROUIT

Filed August 20, 1980

A, Daniel Fusaro, Clerk

N.B. Since this statement does not constitute a formal

opinion of this court and is not uniformly available to all

parties, it shall not be reported, cited or otherwise used in

unrelated cases before this or any other court.

Appendix “B”

(Judgment of United States District Court)

UNITED STATES DISTRICT COURT

District or CoNNECTICUT

Civil No, B-80-59

Cuarutes D. Moriurr

Vv.

Donatp A, Browns, State’s Attorney for the Judicial

District of Fairfield County; et al.

JUDGMENT

This cause came on for consideration on the defendants’

Motions To Dismiss and for Motion For Summary Judg-

ment and/or Motion For Judgment for failure to state a

claim upon which relief can be granted by the Honorable

Ellen Bree Burns, United States District Judge, and

The Court having considered the defendants’ motions and

all the papers submitted in connection therewith filed its

Memorandum of Decision granting the defendants’ motion

to dismiss for failure to state a claim upon which relief can

be granted as to petitioner’s claims of double jeopardy and

collateral estoppel and granting the defendants’ motions,

without prejudice, as to petitioner’s claim of federal initia-

tion of the state prosecution,

It is therefore Orperep and Apsupcep that judgment be

and is hereby entered for the defendants and the petition

for a Writ of Habeas Corpus is dismissed.

Appendia “B”

Dated at Bridgeport, Connecticut this 10th day of June,

1980,

Syztvester A. Marxowskt, Clerk

/3/ Kevin F. Rowe

Kevin F. Rowr, Deputy in Charge

Filed June 10, 3:13 P.M., ’80

U.S. District Court, Bridgeport, Conn.

Appendia “B”

(Memorandum of Decision of United States District Court)

UNITED STATES DISTRICT COURT

Distaict or CoNNECTICUT

Civil No. B80-59

Cuartes D, MogLier

Donatp A, Browne, State’s Attorney for the Judicial Dis-

trict of Fairfield County; Bernarp Lucxkart, Clerk of

the Superior Court, Judicial District of Fairfield

County, and Victor Lisvrpi, Warden, Community Cor-

rectional Center, Bridgeport

Memoranpum OF Decision

Petitioner has been charged with conspiracy to commit

arson in the first degree and conspiracy to commit arson

in the second degree in a criminal action pending before the

Superior Court in the Judicial District of Fairfield (Con-

necticut) under an information brought May 3, 1977. On

January 22, 1976, petitioner was acquitted in this court of

four federal charges, including one alleging conspiracy to

commit arson in violation of 18 U.S.C, §371. It is undis-

puted that the state information centers upon the same

alleged conspiracy to commit the same alleged act of arson.

Petitioner has brought this petition for a writ of habeas

corpus claiming the state information has been brought

in violation of the Double Jeopardy and Due Process

Appendia “B”

clauses of the Fifth Amendment to the United States Con-

stitution, the Due Process clause of the Fourteenth Amend-

ment thereto, and the doctrine of collateral estoppel. Peti-

tioner further claims that the state prosecution “was fed-

erally initiated, designed, investigated and guided in order

that a clearly prohibited second federal prosecution might

be accomplished indirectly.”

Petitioner filed a motion to dismiss the state action in

the Superior Court on May 26, 1977, claiming the same

Fifth and Fourteenth Amendment violations and violation

of Article First, Section 8, of The Connecticut Constitution.

This motion was denied in a decision, dated December 21,

1977, which decision was affirmed by the Supreme Court of

Connecticut. State v. Moeller, —— Conn. , Conn. LJ.,

Vol. XL, No. 51, p. 20, June 19, 1979. The United States

Supreme Court denied certiorari on November 13, 1979.

Respondents have filed two motions captioned “Motion

to dismiss and/or Motion for Summary Judgment and/or

Motion for Judgment for failure to state a claim upon

which relief can be granted” on the grounds that the law

is settled that there can be successive prosecutions by the

state and federal governments for conduct violating both

state and federal laws and that petitioner has not exhausted

his state remedies with respect to the claim that the pend-

ing state prosecution was federally initiated.

The leading cases on the constitutionality of successive

state and federal prosecutions are Bartkus v. Illinois, 359

U.S. 121 (1959) and Abbate v. United States, 359 U.S. 187

(1959). In Bartkus, petitioner had been tried and acquitted

in a federal district court for violation of 18 U.S.C. §2113,

which makes robbery of a federally-insured bank a crime.

He was subsequently tried and convicted, on substantially

Appendia “B”

the same evidence, in an Illinois state court for violation of

an Illinois robbery statute. Petitioner’s plea of autrefois

acquit was rejected by the Illinois trial court and, following

affirmance of his conviction by the Illinois Supreme Court

on an appeal which alleged error in that ruling, inter alia,

the United States Supreme Court granted certiorari be-

cause the petition raised a substantial question concerning

the application of the Due Process Clause of the Four-

teenth Amendment. After reciting the history of the

ratification of the Fourteenth Amendment by the several

states, the admission of new states to the union thereafter

and the body of case law interpreting the application of the

Due Process Clause to state action, and discussing the dual

sovereignty theory that it would be “in derogation of our

federal system to displace the reserved power of states

over state offenses”, Bartkus at 137, the Supreme Court

held that the Due Process Clause does not apply to the

states any of the provisions of the first eight amendments

as such and that the Illinois prosecution did not violate the

Due Process Clause. In Abbate, petitioners, following a

plea of guilty in an Illinois state court to violation of a

state statute making it a crime to conspire to injure or

destroy the property of another, were indicted, tried and

convicted in a federal district court, because of the same

conspiracy, for violating 18 U.S.C. §371 by conspiring to

violate 18 U.S.C. §1362, which proscribes the injury or

destruction of communications facilities operated or con-

trolled by the United States. The court held the federal

prosecution was not barred under the Double Jeopardy

Clause of the Fifth Amendment because of the state con-

viction,

Appendia “B”

Petitioner, however, claims that, as a result of Benton v.

Maryland, 395 U.S. 784 (1968), the viability of Bartkus and

Abbate is subject to serious question, In Benton, petitioner

had been tried in a Maryland state court for burglary and

larceny. Acquitted of the larceny charge but found guilty

of burglary, he appealed to the state supreme court which,

having recently found a Maryland state constitutional pro-

vision requiring jurors to swear their belief in the existence

of God unconstitutional, remanded petitioner’s case to the

trial court where he was given the option of demanding

re-indictment and retrial. Petitioner so opted and, at his

second trial, he was again charged with larceny and bur-

glary. Petitioner objected to retrial on the larceny charge

arguing that, since he had been found not guilty of that

charge in his first trial, retrial would violate the double

jeopardy provisions of the constitution. This motion was

denied and petitioner was retried and convicted of both

charges. His double jeopardy claim was rejected on appeal

by the Maryland Court of Special Appeals, the Court of

Appeals denied discretionary review and the United States

Supreme Court granted certiorari. On the merits the latter

court held that the Double Jeopardy Clause of the Fifth

Amendment is applicable to the states through the Four-

teenth Amendment, reversing petitioner’s larceny convic-

tion and expressly overruling Palko v. Connecticut, 302

U.S. 319 (1937), insofar as it was inconsistent therewith.

Petitioner claims that the holding of Benton, especially

in consideration of the erosion of the dual sovereignty con-

cept inherent in, e.g., Elkins v. United States, 364 U.S. 206

(1960) (illegally seized state evidence not admissible in

federal prosecution), Mapp v. Ohio, 367 U.S. 643 (1961),

(illegally seized federal evidence inadmissible in state pros-

Appendia “B”

ecution), and Murphy v. Waterfront Commission, 378 U.S.

52 (1964), (extension of the Fifth Amendment’s self-in-

crimination clause to testimony sought in one jurisdiction

that would incriminate in another, absent immunity),

should impel this court to finding in the negative on

the question of the continuing vitality of Bartkus.

Respondents counter by pointing to United States v.

Wheeler, 435 U.S. 313 (1978), in which the court said “In

Bartkus v. Illinois, 359 U.S. 121, and Abbate v. United

States, 359 U.S. 187, this Court reaffirmed the well-estab-

lished principle that a federal prosecution does not bar a

subsequent state prosecution of the same person for the

same acts, and a state prosecution does not bar a federal

one. The basis for this doctrine is that prosecutions under

the laws of separate sovereigns do not, in the language of

the Fifth Amendment, ‘subject [the defendant] for the same

offence to be twice put in jeopardy’.” Wheeler at 316, 317.

Wheeler, a member of the Navajo Indian tribe, pled guilty

in a Tribal Court to disorderly conduct and contributing

to the delinquency of a minor in violation of the Navajo

Tribal Code. A year later an indictment was returned by

a grand jury in the United States District Court for the

District of Arizona charging him with statutory rape aris-

ing from the same incident. Wheeler’s motion to dismiss

the indictment was granted by the district court which re-

jected the government’s claim that there was no identity

of sovereignties between the Navajo Tribal Courts and the

United States courts. The Court of Appeals for the Ninth

Circuit affirmed the judgment of dismissal on a finding that

Indian Tribal Courts and United States District Courts

were not arms of separate sovereignties and the Double

Jeopardy Clause barred Wheeler’s trial. The Supreme

Court reversed, finding that the tribe’s power to punish

States, 359 U.S. 187, this court reaffirmed the well-estab-

10a

Appendia “B”

tribal offenders was a part of inherent tribal sovereignty

which had never been relinquished or implicitly lost by

reason of the Indians’ independent status. “Since tribal

and federal prosecutions are brought by separate sover-

eigns, they are not ‘for the same offence,’ and the Double

Jeopardy Clause thus does not bar one when the other

has occurred.” Id., 329-330.

Petitioner’s argument as to the effect of Benton on Bart-

kus and Abbate has been considered and rejected by a

number of federal appellate courts, e.g., Hutul v. United

States, 582 F.2d 1155 (7th Cir.), cert. den. 440 U.S. 911

(1979); Turley v. Wyrick, 554 F.2d 840, 841 (8th Cir.),

cert. den. 434 U.S. 1033 (1978) ; United States v. Frumento,

563 F.2d 1083, 1088 (3rd Cir.), cert. den. sub nom. Milhouse

v. United States, 434 U.S. 1072 (1978); United States v.

Johnson, 516 F.2d 209, 212 (8th Cir.), cert. den, 423 U.S.

859 (1975); Martin v. Rose, 481 F.2d 658, 659-660 (6th

Cir.), cert. den, 414 U.S. 876 (1973). Other attacks on the

dual sovereignty doctrine have similarly been rejected, e.g.,

United States v. Hayes, 589 F.2d 811, 817 (5th Cir.), cert.

den. 100 S.C. 93 (1979) ; United States v. Wallace, 578 F.2d

735, 739 (8th Cir.), cert. den. sub nom. Mitchell et al. v.

United States, 439 U.S. 898 (1978) ; United States v. Villano,

529 F.2d 1046, 1060-1061 (10th Cir. 1976), cert. den, 426 U.S.

953 (1976); United States v. Vaughan, 491 F.2d 1096, 1097

(5th Cir. 1974) ; United States v. Smaldone, 485 F.2d 1333,

1343 (10th Cir.), cert. den. 416 U.S. 936 (1973); United

States v. Barone, 467 F.2d 247, 250 (2d Cir. 1972); United

States v. Synnes, 438 F.2d 764, 773 (8th Cir.), vacated on

other grounds 404 U.S. 1009 (1972) ; United States v. Cros-

son, 462 F.2d 96, 103 (9th Cir.), cert. den. 409 U.S. 1064

(1972).

Neither petitioner nor the court has found any federal

ease in which the claim that the death knell] has rung on

lla

Appendia “B”

Bartkus has been accepted.' Petitioner points to People v.

Cooper, 398 Mich. 450, 247 N.W. 2d 866 (1976) ; Common-

wealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971) ; and Com-

monwealth v. Cepulonis, 373 N.E. 2d 1136 (Supreme Ct.

Mass, 1978) in which each of the several states, acknowledg-

ing that Bartkus allows but does not mandate a successive

prosecution, overturned defendants’ state convictions by

interpreting state constitutional provisions and analyzing

the state’s interest in prosecution (Cooper and Mills) and

by applying a “same evidence” test (Cepulonis). Some such

approach could have been, but was not adopted by Connec-

ticut’s highest court (see dissenting opinion of Justice

Peters, State v. Moeller, supra, at 23-24) or the Connecticut

General Assembly could, by statute, proscribe state prosecu-

tions successive to federal action. This Court, however re-

pugnant may be the concept of successive prosecutions for

the same acts, reluctantly concludes that such an option is

the state’s to exercise in concurrence with the United States

Supreme Court’s “continuing sensitivity to the fairness im-

plications of the multiple prosecution power,” Rinaldi v.

United States, 434 U.S. 22, 28 (1977), and that the weight

of authority above cited compels this Court, as it did Judge

Lay in Turley v. Wyrick, supra, to acknowledge that “it is

not my singular role to express opinion contrary to estab-

lished law.”

Petitioner also argues that the state is collaterally es-

topped from maintaining this prosecution. In Ashe v. Swen-

son, 397 U.S. 436 (1969), the Supreme Court held that the

Fifth Amendment guarantee against double jeopardy made

applicable to the states in Benton v. Maryland, supra, em-

1Dictum in United States v. Kniqht, 509 F.2d 354. 360 (D.C.

Cir. 1974), however, suggests that there is “serions question

whether the doctrinal line from Fay to Bartkus has not been

eroded by Murphy v. Waterfront Commission, 378 U.S. 52 (1964).”

12a

Appendia “B”

bodies collateral estoppel, which phrase “means simply that

when an issue of ultimate fact has once been determined by

a valid and final judgment, that issue cannot again be liti-

gated between the same parties in any future law-suit.”

Ashe at 443. That doctrine, however, does not aid this

defendant because “[cJollateral estoppel does not apply to

successive prosecutions by the state and federal govern-

ments because the party that the defendant seeks to estop

in the second prosecution was not a party to the first trial.”

Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977), cert.

den. 434 U.S. 1033, 98 S. Ct. 765, 54 L. Ed. 2d 780 (1978) ;

United States v. Smith, 446 F.2d 200, 202 (4th Cir. 1971);

United States v. Hutul, 416 F.2d 607, 626 (7th Cir. 1969),

cert. den. 396 U.S. 1012, 90 S. Ct. 573, 24 L. Ed. 2d 504

(1970).” United States v. Hayes, 589 F.2d 811, 819 (5th

Cir. 1979), cert. den. 100 S. Ct. 93 (1979). See also United

States v. Feinberg, 383 F.2d 60, 71 (2d Cir. 1967).

Respondents contend that petitioner’s claim that the

state prosecution was federally initiated has never been

presented to the Supreme Court of Connecticut and that

petitioner has not exhausted his existing state remedies.

Petitioner’s motion to dismiss the information in state

court was predicated on the Double Jeopardy and Due

Process clauses of the Fifth Amendment, the Due Process

and Equal Protection clauses of the Fourteenth Amend-

ment, Benton v. Maryland, supra, and the Due Process

clause of Article First, Section 8, of the Connecticut Con-

stitution. The motion contained no claim that the state

prosecution was federally initiated and the decisions of

the Connecticut Superior and Supreme Courts did not ad-

dress this issue. Petitioner did seek the opportunity for

hearing and submission of evidence in the state court, an

opportunity not afforded to him prior to the issuance of the

I ET

13a

Appendia “B”

Superior Court decision. However, this court’s reading of

the transcript of oral argument in the Superior Court and

petitioner’s brief submitted to that court leads to the con-

clusion that the purpose for the hearing and evidentiary

submissions was to show that the “same offence” was being

tried in both courts and that there was a mutuality of pur-

pose between the two sovereigns. Nowhere was it suggested

that the state prosecution “was federally initiated, de-

signed, investigated and guided in order that a clearly

prohibited second federal prosecution might be accom-

plished indirectly.” Petition, ]3(E). Accordingly, in the

view that the Superior Court took of the applicability of

the dual sovereignty doctrine it is not surprising no hearing

was afforded. Petitioner apparently did not seek recon-

sideration of its decision by the Superior Court in order to

address the hearing issue and no mention is made of the

denied hearing opportunity or of the federal initiation

claim in his brief to the Supreme Court. Therefore, even

assuming this claim was clearly before the Superior Court,

it would be considered as having been abandoned on appeal

to the Supreme Court. Since 28 U.S.C. §2254 requires that

the state’s highest court be given an opportunity to pass

upon petitioner’s claim prior to its consideration on a

habeas petition, Fay v. Nota, 372 U.S. 391, 437-38 (1963) ;

United States ex rel. Carbone v. Manson, 447 F’. Supp. 611,

618 (D. Conn. 1978), this court cannot entertain the allega-

tion that the state prosecution is federally initiated.

Accordingly, respondents’ motion to dismiss for failure

to state a claim on which relief can be granted is granted

as to petitioner’s claims of double jeopardy and collateral

estoppel and is granted without prejudice for failure to ex-

eo Ee SO pe re ee ee ee ee ee Oe eee

14a

Appendia “B”

haust state remedies as to petitioner’s claim of federal ini-

tiation of the state prosecution.

So OrpereEp.

/8/ E.ten Bree Burns

Ellen Bree Burns

United States District Judge

Dated at New Haven, Connecticut, this 3rd day of May,

1980.

Frzp

May 30 3:52 PM ’80

U.8. DISTRICT COURT

NEW HAVEN, CONN.

Mae

15a

Appendix ‘“C”’’

(Decision of Supreme Court)

SUPREME COURT

March Term, 1979

Strate or Connecticut v. CHarLtes MorLLer

Correr, C. J., Lorsette, Bocpanski, Lonco and Peters, Js.

Argued March 14—decision released June 19, 1979

Information charging the defendant with the crimes of

conspiracy to commit arson in the first degree and con-

spiracy to commit arson in the second degree, brought to

the Superior Court in Fairfield County where the court,

I. Levine, J., denied the defendant’s motion to dismiss the

inforiusation, from which the defendant appealed to this

court. No error.

Thomas L. Nadeau, with whom, on the brief, was The-

odore I. Koskoff, for the appellant (defendant).

Donald A. Browne, state’s attorney, for the appellee

(state).

Loneo, J. The single issue presented by this appeal is

whether the trial court erred in denying the defendant’s

motion to dismiss, thus overruling the defendant’s claim

that a state prosecution, following a federal court jury

acquittal regarding essentially the same alleged criminal

conduct, would violate certain of the defendant’s rights se-

cured by the state and federal constitutions. .

We briefly recite those facts necessary to a resolution of

this issue: On the evening of March 1, 1975, a fire totally

destroyed a large manufacturing facility in Shelton, Con-

necticut, known as Plant No. 4 of the Sponge Rubber

l6a

Appendia “C”

Products Company. This incident resulted in an extensive

investigative effort by both federal and state authorities

which led to a federal indictment and the arrest of ten in-

dividuals, including the defendant Moeller. Subsequently,

a lengthy federal trial resulted in the conviction of various

of the federal defendants.’ On January 22, 1976, the defen-

dant Moeller was acquitted by the federal jury of all of the

four charges lodged against him, and’on January 27, 1976,

a formal judgment of acquittal was rendered by the United

States District Court (Newman, J.) as to the defendant.

Among the charges upon which the defendant was acquitted

was an arson conspiracy count under 18 U.S.C. §¢ 371,

1952 and 2.

Thereafter, on May 3, 1977, the defendant was charged

in the Superior Court, in a two-count information, with

conspiracy to commit arson in the first and second degrees,

in violation of $4 53a-48, 53a-111 and 53a-112 of the Gen-

eral Statutes, for his alleged participation in the Shelton

Sponge Rubber Products Company fire. The state’s ap-

plication for a bench warrant, the supporting affidavit, and

the subsequently filed information make clear that the same

conspiracy as charged in the federal indictment is involved

in the pending state prosecution. The defendant pleaded

not guilty to the information. On May 25, 1977, the defen-

dant filed a motion to dismiss the information based upon

the “double jeopardy” provision of the fifth amendment to

the United States constitution,’ the due process and equal

protection clauses of the fourteenth amendment to the

constitution, and the due process clause of article first, 4 8,

1 See United States v. Bubar, 567 F.2d 192, 196 (2d Cir. 1977).

2“ 'Njor shall any person be subject for the same offense to be

twice put in jeopardy of life or limb... .”” U.S. Const. amend. V.

17a

Appendia “C”

of the Connecticut constitution. On December 21, 1977, the

trial court denied the defendant’s motion. The defendant

has appealed to this court from the denial of his motion to

dismiss.

Both the defendant and the state have assisted the court

in focusing sharply upon the issue to be resolved; the

parties have candidly argued and thoroughly researched

the legal principles that must, of necessity, illuminate and

guide our decision. The defendant mounts an attack from

both constitutional and statutory quarters, arguing that

the trial court erred in denying his motion to dismiss,

principally because the cases upon which the court relied,

Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d

684 (1959), and Abbate v. United States, 359 U.S. 187, 79

S. Ct. 666, 3 L. Ed. 2d 729 (1959), and their numerous

progeny, establishing an exception to the rule against dou-

ble jeopardy commonly referred to as the “doctrine of dual

sovereignty,” have been so enfeebled and eroded as to lack

any binding force. Additionally, it is argued that, consis-

tent with the intention of various legislative enactments

and court decisions of other states emphasizing the “in-

dividual protection” which the double jeopardy clause was

meant to foster, a successive state prosecution following a

federal court acquittal is barred. The defendant finally

argues that the doctrine of collateral estoppel, as constitu-

tionally embodied in the double jeopardy clause, bars the

relitigation by the state of the same operative facts upon

which the defendant had previously been acquitted by a

federal jury. The state responds that the established law

on the issue presented is unequivocal and clear in holding

that the same act may constitute a violation of both federal

and state laws, and neither a conviction nor an acquittal

in federal or state court bars a subsequent prosecution in

18a

Appendia “C”

the other court system arising from the same transaction

or event. We agree.

In Bartkus v. Illinois, 359 U.S. 121, 79 S, Ct. 676, 3 L. Ed.

2d 684 (1959), and Abbate v. United States, 359 U.S. 187, 79

S. Ct. 666, 3 L. Hd. 2d 729 (1959), the United States Su-

preme Court reaffirmed the well-established principle that

a federal prosecution does not bar a subsequent state prose-

cution of the same person for the same acts, and a state

prosecution does not bar a federal one,* The basis for the

court’s decision, establishing what has been termed the

“dual sovereignty” concept; see United States v. Wheeler,

435 U.S. 313, 98 S. Ct. 1079, 55 L, Ed, 2d 303 (1978); was

that prosecutions under the laws of separate sovereigns do

not, in the language of the fifth amendment, “subject [the

defendant] for the same offense to be twice put in jeop-

ardy”: “An offence, in its legal signification, means the

transgression of a law. ... Every citizen of the United

States is also a citizen of a State or territory. He may be

3 Although the problems arising from concurrent federal and

state criminal jurisdiction had been noted earlier; see Houston v.

Moove, 18 U.S. (5 Wheat.) 1, 5 L. Ed. 19 (1820); the court did

not clearly address the issue until Fox v. Ohio, 46 U.S. (5 How.)

410, 12 L. Ed. 213 (1847); United States v. Marigold, 50 U.S. (9

How.) 560, 18 L. Ed. 257 (1850); and Moore v. Illinois, 55 U.S.

(14 How.) 13, 14 L. Ed. 306 (1852), in the mid-nineteenth ecen-

tury. Those cases upheld the power of states and the federal gov-

ernment to make the same act criminal; in each case the possibility

of consecutive state and federal prosecutions was raised as an ob-

jection to concurrent jurisdiction, and was rejected by the court

on the ground that such multiple prosecutions, if they occurred,

would not constitute double jeopardy. The first case in which

actual multiple prosecutions were upheld was United States v.

Lanza, 260 U.S. 377, 43 8. Ct. 141, 67 L. Ed. 314 (1922), involving

a prosecution for violation of the Volstead Act, c. 85, 41 Stat. 305,

after a conviction for criminal violation of liquor laws of the state

of Washington.

19a

Appendia “C” d

said to owe allegiance to two sovereigns, and may be liable

to punishment for an infraction of the laws of either. The

same act may be an offence or transgression of the laws of

both.... That either or both may (if they see fit) punish

such an offender, cannot be doubted. Yet it cannot be truly

averred that the offender has been twice punished for the

same offence; but only that by one act he has committed two

offenses, for each of which he is justly punishable.” Moore

v. Illinois, 55 U.S, (14 How.) 13, 19-20, 14 L. Ed. 306 (1852).

The court in Abbate found further support for the “dual

sovereignty” concept by noting the “undesirable conse-

quences” that would inhere in imposing a double jeopardy

bar upon state-federal or federal-state prosecutions. Prose-

cution by one sovereign for a minor offense might bar

prosecution by the other for a much graver one, and the

court clearly took the position that a federal prosecutor has

no authority to bargain away a state’s power to enforce

its criminal laws. See also United States v. Wheeler, supra,

318.

Finally, Bartkus and Abbate, although not weathering

the years without criticism,‘ rest on the basic structure of

our federal system, in which the states and the national

government are separate political communities. State

and federal governments “[derive] power from different

sources,” each from the organic law that established it.

United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 67

L. Ed. 314 (1922). Each has the power, inherent in any

sovereign, independently to determine what shall be an

4 See, e.g., Brant, “Overruling Bartkus and Abbate: A New

Standard for Double Jeopardy,” 11 Washburn IL... 188 (1972):

Recent Developments, 18 Vill. L. Rev. 491 (1973); Recent Deci-

sions, 12 Dugq. L. Rev. 365 (1973); Comment, “Successive Prosecnu-

tions by Two Sovereigns After Benton v. Maryland.” 66 Nw. U1.

Rev. 248 (1971); Recent Cases, 39 Cinn. L. Rev. 799 (1970).

20a

Appendia “C”

offense against its authority and to punish such offenses,

and in doing so each “is exercising its own sovereignty, not

that of the other.” Ibid. “And while the States, as well as

the Federal Government, are subject to the overriding re-

quirements of the Federal Constitution, and the Supremacy

Clause gives Congress within its sphere the power to enact

laws superseding conflicting laws of the States, this degree

of federal control over the exercise of state governmental

power does not detract from the fact that it is a State’s

own sovereignty which is the origin of its power.” United

States v. Wheeler, supra, 320.

The defendant must acknowledge that his claim of double

jeopardy, arising from the pending state prosecution, is, as

a matter of federal constitutional law, foreclosed under the

rationale of Bartkus and Abbate, It is not correct to claim,

however, as does the defendant, that these cases no longer

represent the United States Supreme Court’s view of the

concept of “dual sovereignty,” or that these cases have lost

their viability concerning successive prosecutions under the

double jeopardy clause. The continued validity and pro-

priety of the “dual sovereignty” concept was recognized

and affirmed by the unanimous decision of the Supreme

Court in United States v. Wheeler, supra, and has been

continuously reaffirmed by the decisions of the United States

Court of Appeals. Wheeler, holding that the double jeop-

ardy clause did not bar the prosecution of an Indian in a

federal court when he had previously been convicted in a

tribal court of a lesser included offense arising out of the

same incident, discusses Bartkus and Abbate at length,

clearly regarding them as still correctly stating the law,

and unequivocally reaffirms the duel sovereignty doctrine

which prevents the imposition of the double jeopardy bar.

2la

Appendia “C”

Moreover, almost every federal circuit has rejected claims

identical to those raised by the defendant Moeller, thereby

permitting successive state-federal or federal-state prosecu-

tions. See United State v. Martin, 574 F.2d 1359 (5th Cir.

1978) ; United States v. Frumento, 563 F.2d 1083 (3d Cir.

1977) ; United States v. Cordova, 537 F.2d 1073 (9th Cir.

1976); United States v. James, 532 F.2d 1161 (7th Cir.

1976); United States v. Villano, 529 F.2d 1046 (10th Cir.

1976); United States v. Johnson, 516 F.2d 209 (8th Cir.

1975) ; Martin v. Rose, 481 F.2d 658 (6th Cir. 1973) ; United

States v. Barone, 467 F.2d 247 (2d Cir. 1972) ; United States

v. Smith, 446 F.2d 200 (4th Cir. 1971); United States v.

Regan, 273 F. 727 (1st Cir. 1921).°

Notwithstanding this universally accepted principle of

federal law, the defendant argues that the principle allow-

ing successive prosecutions has been eroded by three subse-

quent decisions of the United States Supreme Court, which,

it is claimed, suggest that the attitude of the court may

have changed since Bartkus and Abbate. Those decisions

are Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L.

Ed. 2d 707 (1969) ; Waller v. Florida, 397 U.S. 387, 90 S. Ct.

1184, 25 L. Ed. 2d 435 (1970); and Ashe v. Swenson, 397

U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). We cannot

agree with the defendant’s interpretation of those cases.

In Benton the Supreme Court firmly established that the

application of the fifth amendment guarantee against double

5 The substantial majority of state courts also adhere to this

view. See, e.g., People v. Hines, 572 P.2d 467 (Colo. 1977); State

v. Rogers, 90 N.M. 604, 566 P.2d 1142 (1977) ; State v. Forbes, 348

So. 2d 983 (La. 1977); Crane v. State, 555 P.2d 845 (Nev. 1976) ;

Stathes v. State, 29 Md. App. 474, 349 A.2d 254 (1975); State v.

Turley, 518 S.W.2d 207 (Mo. App. 1974); Klein v. Murtagh, 44

App. Div. 2d 465, 355 N.Y.S.2d 622 (1974); People v. Belcher, 11

Cal. 3d 91, 520 P.2d 385 (1974) ; State v. Cooper, 54 N.J. 330, 255

A.2d 282 (1969); State v. Castonguay, 240 A.2d 747 (Me. 1968).

22a

Appendia “C”

jeopardy is enforceable against the states through the

fourteenth amendment, but the case has no further applica-

tion to the case at bar. In Waller the court held that a single

sovereign, there the state, could not maintain two separate

prosecutions for an offense and an included offense. Here,

we have independent sovereigns prosecuting for different

offenses, each offense being peculiar to the separate sover-

eign. In Ashe, upon a theory of collateral estoppel, it was

held that a single sovereign cannot prosecute for separate

offenses occurring in a single event where the result of the

first prosecution collaterally and undeniably established the

innocence of the accused on the second charge. This again,

is not our case.°

6 The defendant argues that the state, pursuant to Ashe v.

Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), is

collaterally estopped from “relitigating” the facts upon which he

was acquitted in federal court. We disagree. Collateral estoppel

“means simply that when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot again

be litigated between the same parties in any future law suit.”

(Emphasis added.) Ashe v. Swenson, supra, 443; see Slattery v.

Maykut, Conn. (40 Conn. L.J., No. 12, pp. 4, 7) (1978). The

application of collateral estoppel thus requires an identity of

parties in the prior and subsequent litigation. In this case, the

federal government is neither the same as nor in privity with the

state of Connecticut. In such circumstances, the state is not col-

laterally estopped from maintaining a prosecution against the

defendant. Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977);

United States v. Johnson, 516 F.2d 209, 211 (8th Cir. 1975);

Martin v. Rose, 481 F.2d 658, 660 (6th Cir.), cert. denied, 414

U.S. 876, 94 S. Ct. 86, 38 L. Ed. 2d 121 (1973); Ferina v. United

States, 340 F.2d 837, 839 (8th Cir.), cert. denied, 381 U.S. 902, 85

S. Ct. 1446, 14 L. Ed. 2d 284 (1965) ; United States v. Wapnick,

315 F.2d 96 (2d Cir. 1963); Rios v. United States, 256 F.2d 173

(9th Cir. 1958) ; State v. Smith, 359 So. 2d 160, 163 (La. 1978) ;

State v. West, 260 N.W.2d 215, 219 (S.D. 1977) ; State v. Rogers,

90 N.M. 604, 607, 566 P.2d 1142 (1977) ; Commonwealth v. Stude-

baker, 362 A.2d 336 (Pa. Super. 1976); Klein v. Murtagh, 44

App. Div. 2d 465, 469, 355 N.Y.S.2d 622 (1974),

23a

Appendia “C”

We thus decline the defendant’s invitation to construe

Benton, Waller and Ashe as cases anticipatory of a rule

prohibiting all but a single prosecution regardless of con-

siderations concerning different laws and the rights of sepa-

rate sovereigns. The courts that have considered the precise

claim made by the defendant concerning tle effect of these

cases on Bartkus and Abbate have specifically rejected the

argument. Hutul v. United States, 582 F.2d 1155, 1157 (7th

Cir. 1978) ; United States v. Wallace, 578 F.2d 735 (8th Cir.

1978); United States v. Johnson, 516 F.2d 209 (8th Cir.

1975) ; Martin v. Rose, 481 F.2d 658 (6th Cir. 1973) ; Umted

States v. Crosson, 462 F.2d 96 (9th Cir. 1972); United

States v. Synnes, 438 F.2d 764 (8th Cir. 1971); State v.

Fletcher, 26 Ohio St. 2d 221, 224, 271 N.E.2d 567 (1971);

Breedlove v. State, 470 S.W.2d 880, 882 (Tex. Crim. App.

1971) ; Bankston v. State, 236 So. 2d 757, 760 (Miss, 1970) ;

State ex rel. Cullen v. Ceci, 45 Wis. 2d 432, 457, 173 N.W.2d

175 (1970). A compilation of additional cases in accord

with those cited may be found in annot., 18 A.L.R. Fed. 393.

Furthermore, the defendant’s argument that the United

States Supreme Court may have “changed its mind” con-

cerning Bartkus and Abbate is, at the least, not aided by

the fact that that court has consistently denied review, most

recently on February 20, 1979, without a single dissent, in

appeals involving precisely the same multifaceted attack

made by the present defendant challenging the continuing

authority of Bartkus and Abbate. See Hutul v. United

States, 582 F.2d 1155 (7th Cir.), cert. denied, —— U.S. ——,

98 S. Ct. 1222, — L. Ed. 2d.—— (1979) (leaving intact

ruling that no double jeopardy violation inheres in succes-

sive prosecutions) ; MacDonald v. United States, 585 F.2d

1211 (4th Cir. 1978), cert. denied, U.S. ——, 99 S. Ct.

1504, —— L. Ed. 2d —— (1979) (leaving intact ruling that

24a

Appendia “C”

collateral estoppel no bar to successive prosecution) ;

Parker v. United States, 582 F.2d 953 (5th Cir, 1978), cert.

denied, —— U.S, ——, 99 S. Ct. 1424, —— L. Ed. 24 ——

(1979) (leaving intact ruung that collateral estoppel no bar

to successive prosecution.’

The defendant finally assigns significant emphasis to the

decisions of some state courts,’ and a number of legislative

enactments, that have, pursuant to particular state consti-

tutions or by statute, limited or rejected the dual sover-

eignty concept.’ We are not persuaded to join those states

in rejecting the clear language of the United States Su-

preme Court in Bartkus and Abbate, and the almost uni-

7See also Millhouse v. United States, 563 F.2d 1083 (3d Cir.

1977), cert. denied, 434 U.S. 1072, 98 S. Ct. 1256, 55 L. Ed. 2d 775

(1978) ; Sills v. United States, 563 F.2d 1083 (3d Cir. 1977),

cert. denied, 434 U.S. 1072, 98 S. Ct. 1258, 55 L. Ed. 2d 776 (1978) ;

United Sttaes v. Kerrigan, 514 F.2d 35 (9th Cir. 1975), cert.

denied, 423 U.S. 924, 96 S. Ct. 266, 46 L. Ed. 2d 249 (1975);

United States v. Kerrigan, 514 F.2d 35 (9th Cir. 1975), cert.

denied, 420 U.S. 964, 95 S. Ct. 1358, 43 L. Ed. 2d 443 (1975);

United States v. Burke, 495 F.2d 1226 (5th Cir. 1974), cert. denied,

419 U.S. 1079, 95 S. Ct. 667, 42 L. Ed. 2d 673 (1974); Martin v.

Rose, 481 F.2d 658 (6th Cir. 1973), cert. denied, 414 U.S. 876, 94

S. Ct. 86, 38 L, Ed. 2d 121 (1973).

8 State v. Hogg, N.H. , 385 A.2d 844 (1978) ; People v.

Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976) ; Commonwealth

v. Mills, 447 Pa. 163, 286 A.2d 638 (1971); ef. Commonwealth v.

Cepulonis, Mass. , 373 N.E.2d 1136 (1978).

® Alaska, Arizona, Arkansas, California, Delaware, Georgia,

Hawaii, Illinois, Indiana, Kansas, Minnesota, Montana, New York,

North Dakota, Oklahoma, Pennsylvania, Utah, Virginia, and

Washington have such legislation. See citations collected at

American Law Institute, Double Jeopardy, 126-27 (1935), and

Model Penal Code § 1.11, pp. 60-61, comment (Tent. Draft No. 5,

1956).

25a

Appendia “C”

versal acceptance of those authorities in the cases we have

cited in this opinion. Our constitution, first, has no double

jeopardy clause, and although we have indicated that the

prohibition against double jeopardy is implicit in our com-

mon law; State v. Woodruff, 2 Day 504, 507 (1807); we

have never held that, under the circumstances of this case,

a state prosecution is barred. We refrain from doing so in

the present case. A contrary rule could result in an un-

seemly race between the federal and state authorities to

obtain early jurisdiction, thereby eventuating in a frustra-

tion of either the national or state policy concerning law

enforcement. To agree with the defendant could create an

“undesirable result”; Abbate v. United States, supra, 195;

“the result would be a shocking and untoward deprivation

of the historic right and obligation of the states to maintain

peace and order within their confines.” Bartkus v. Illinois,

supra, 137.

The dual sovereignty concept of Bartkus and Abbate is

based upon the practical necessity of permitting the state

and federal governments to enforce laws which they enact

in their respective fields of operation, Those decisions,

giving sensible recognition to the practicalities of our con-

stitutional form of government, reject the premise that

successive prosecutions are merely a judicial nuance, and

compellingly find that the necessities of the governments

in enforcing their laws for the benefit of all citizens are of

greater importance than the undesirability of an occasional

imposition of two trials on an individual. We agree.

There is no error.

In this opinion Cotter, C. J., Lorsetie and BoapanskI, Js.,

concurred.

26a

Appendia “C”

Peters, J. (dissenting). While I agree with my colleagues

that Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed.

2d 684 (1959), and Abbate v. United States, 359 U.S. 187,

79 S. Ct. 666, 3 L. Ed. 2d 729 (1959), established a rule of

dual sovereignty that has continued to have vitality, I dis-

agree about the implications of dual sovereignty for this

court.

Dual sovereignty is one example of the recognition of the

principles of federalism. Bartkus and Abbate hold no more

than that the fourteenth and the fifth amendments to the

United States constitution do not forbid one sovereign the

right to reprosecute a criminal defendant because of his

prior involvement with the other sovereign. Nothing in

those cases compels, or even legitimates, automatic re-

prosecution as a matter of state law. That the rule of dual

sovereignty is permissive rather than mandatory is clear

from Bartkus, the case more directly relevant because it

too involved state reprosecution after federal acquittal.

Bartkus stated (pp. 138-39): “[T]hese problems are ones

with which the States are obviously more competent to deal

than is this Court. Furthermore, the rules resulting will

intimately affect the efforts of a State to develop a rational

and just body of criminal law in the protection of its citi-

zens. We ought not to utilize the Fourteenth Amendment

to interfere with this development.”

It is furthermore clear that the formal absence of a pro-

vision in our constitution expressly forbidding double jeop-

ardy is not a barrier to consideration of the claim raised by

the defendant. The prohibition against double jeopardy

is, as my colleagues acknowledge, implicit in the common

law and our cases have so held. State v. Langley, 156 Conn.

59, 600-601, 244 A.2d 366 (1968), cert. denied 393 U.S. 1069,

89 S. Ct. 726, 21 L, Ed. 2d 712 (1969) ; Kohlfuss v. Warden,

27a

Appendia “C”

149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928,

83 S. Ct. 298, 9 L. Ed. 2d 235 (1962). This case comes to us

as a matter of first impression as to which there are no

binding precedents until today.

The facts of the case before us present a compelling

argument for invocation of the prohibition against double

jeopardy. The defendant is charged in this state with the

same conspiracy for which he was indicted and acquitted

in federal court. The incident that gave rise to both

prosecutions was, from the outset, investigated jointly by

federal and state authorities. There is no discernible

prosecutorial interest that was not fully vindicated in the

original federal trial. The state has made no affirmative

showing why this defendant should twice be forced to run

the gauntlet of criminal prosecution.

I believe this court should adopt the view of the Model

Penal Code $1.10 (Proposed Official Draft, 1962) barring

reprosecution after acquittal in another jurisdiction unless

“the offense of which the defendant was formerly .. . ac-

quitted and the offense for which he is subsequently pros-

ecuted each requires proof of a fact not required by the

other and the law defining each of such offenses is intended

to prevent a substantially different harm or evil... .”

This position has recently been accepted by a number of

state courts; Commonwealth v. Cepulonis, Mass. ?

373 N.E.2d 1136, 1141-42 (1978); People v. Cooper, 398

Mich, 450, 460-61, 247 N.W.2d 866 (1976); State v. Hogg,

N.H. , 385 A.2d 844, 846-47 (1978); Common-

wealth v. Mills, 447 Pa. 163, 169-72, 286 A.2d 638 (1971).

1The Final Report of the National Commission on Reform of

Federal Criminal Laws (“The Brown Commission”) in 1971 recom-

mended the enactment of federal legislation to modify Bartkus and

Abbate. See Report on Proposed Federal Criminal Code, 34 Busi-

28a

Appendix “C”

It is unarguable that the instant reprosecution cannot meet

the test proposed by the Model Penal Code.

My colleagues fear that a limitation on state authority to

reprosecute could result in an unseemly race between the

federal and the state authorities to obtain early jurisdic-

tion. It seems to me at least as likely that the state and

federal authorities will, as in the case before us, cooperate

to assure two functionally identical opportunities to try

a defendant more than once for one and the same offense.

Unless there is a substantial independent state interest

to be vindicated, scarce state prosecutorial resources might

better be allocated to trying new crimes rather than to

retrying old ones.

I would, therefore, find error on the part of the trial

court.

ness Lawyer 725, 730 and 753 (January 1979). The American Bar

Association’s Study Committee urges amendment of S. 1437, the

proposed Criminal Code Reform Act of 1978, to incorporate the

proposals of the Brown Commission. Id., 754.

29a

Appendix “D”

(Opinion of Trial Court)

SUPERIOR COURT

County oF F'arrFIELD

No, 25,131

December 21, 1977

State or CoNNECTICUT

vs.

Cuartes D. More

MEMORANDUM ON Derenpant’s Motion to Dismiss

INFORMATION BasEp oN DovuBLE JEOPARDY

The defendant has moved to dismiss the information

pursuant to the double jeopardy clause of the Fifth Amend-

ment and the due process and equal protection clauses of

the Fourteenth Amendment to the Constitution of the

United States and Article First, Section 8, of the Con-

necticut Constitution. His motion alleges that the defen-

dant was indicted and tried in the United States District

Court in New Haven, Connecticut, and that the federal

crimes alleged and tried arose out of the same transaction

and occurrence as provides the basis for this action. He

further alleges that the jury returned a verdict of not guilty

on the charges submitted to it after other charges had been

dismissed by he court or withdrawn by the government.

He further alleges that the crimes charged by the federal

and state governments do not reflect that the interests of

30a

Appendia “D”

the federal and state governments are substantially dif-

ferent nor the penalties widely disparate, nor the statutes

substantively different, and that there is no “reason to

believe that the federal government could not have been

trusted to fully vindicate the interest of the State govern-

ment.”

The landmark cases in the area of double jeopardy, i.e.,

successive prosecutions by the federal and state govern-

ments, are Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676,

3 L.Ed.2d 684, and Abbate v. United States, 359 U.S. 187,

79 S.Ct. 666, 3 L.Ed.2d 729, which held that the due process

clause of the Fourteenth Amendment does not prohibit

prosecutions by both sovereignties for federal and state

crimes arising out of the same transaction or occurrence

and that they exercise concurrent jurisdiction over the same

offense. This doctrine has been followed in many cited

decisions. Goode v. McCune, 543 F.2d 751, 753 (1976);

United States v. Cordova, 537 F.2d 1073, 1075 (1976);

United States v. James, 532 F.2d 1161, 1165 (1976) ; United

States v. Villano, 529 F.2d 1046, 1061 (1976) ; United States

v. Jones, 527 F.2d 817, 822 (1975); Sappington v. United

States, 523 F.2d 858, 860 (1975); Speed v. United States,

518 F.2d 75, 76 (1975); United States v. Johnson, 516 F.2d

209, 212 (1975) ; United States v. Kerrigan, 514 F.2d 35, 37

(1975), cert. den. 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d

249; United States v. Worth, 505 F.2d 1206, 1210 (1974),

cert. den. 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443;

United States v. Watts, 505 F.2d 951, 953 (1974); United

States v. Ackerson, 502 F.2d 300, 302 (1974) ; United States

v. Delay, 500 F.2d 1361, 1362 (1974); Brinlee v. United

States, 496 F.2d 351, 353 (1974); United States v. Burke,

495 F.2d 1226, 1235 (1974), cert. den. 419 U.S. 1079, 95 S.Ct.

667, 42 L.Ed.2d 673; United States v. Hayles, 492 F.2d 125,

31la

Appendia “D”

126 (1974); United States v. Vaughan, Jr., 491 F.2d 1096,

1097 (1974); People v. Belcher, 113 Cal.Rep. 1, 520 P.2d

385, 389 (1974) ; United States v. Smaldone, 485 F.2d 1333,

1343 (1973) ; Martin v. Rose, 481 F.2d 658, 659 (1973), cert.

den, 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121; United States

v. Addington, 471 F.2d 560, 566 (1973); United States v.

Jackson, 470 F.2d 684, 689 (1972) cert. den. 412 U.S. 951,

93 S.Ct. 3019, 37 L.Ed.2d 1004; Umted States v. Barone,

467 F.2d 247, 250 (1972) ; United States v. Crosson, 462 F.2d

96, 103 (1972); United States ex rel. Hill v. United States,

452 F.2d 664, 665 (1971); Birch v. United Statts, 451 F.2d

165, 167 (1971) ; United States v. Smith, 446 F.2d 200, 202

(1971) ; United States v. Synnes, 438 F.2d 764, 773 (1971) ;

United States v. Hutul, 416 F.2d 607, 626 (1970), cert. den.

396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504; DeMaria v.

Jones, 416 F.Supp. 291, 301 (1976); Turley v. Wyrick, 415

F.Supp. 87, 88 (1976); Lovell v. Arnold, 391 F.Supp. 1047,

1048 (1975); Crane v, State (Nev.), 555 P.2d 845, 846

(1976) ; State v. Turley, (Mo.) 518 S.W.2d 207, 209 (1975) ;

Sathes v. State, 29 Md.App. 474, 349 A.2d 254 (1975) ; Office

of Disciplinary Counsel v. Campbell, (Penn.) 345 A.2d 616,

620 (1975); Klein v. Murtagh, 355 N.Y.S.2d 622, 626, 44

A.D.2d 465 (1974); Bell v. State, 22 Md.App. 496, 323 A.2d

677 (1974), cert. den. 421 U.S: 1003, 95 S.Ct. 2405, 44 L.Ed.

2d 671; State v. Glover (Mo.), 500 S.W.2d 271 (1973) ; State

v. Krell, 125 N.J.Super. 457, 311 A.2d 399, 401 (1973) ; State

v. Pope, 186 Neb. 489, 184 N.W.2d 395, 396 (1971) ; Nance v.

State, 123 Ga.App. 410, 181 S.E.2d 295, 296 (1971); Breed-

love v. State, (Tex. Cr.App.), 470 S.W.2d 880, 882 (1971),

cert. den. 405 U.S. 1074, 92 8.Ct. 1512, 31 L.Ed.2d 808; State

v, Fletcher, 26 Ohio St. 2d 551, 271 N.E.2d 567, 569 (1971),

cert. den. 404 U.S..1024, 92 S.Ct. 699, 30 L.Ed.2d 675; State

ex rel, Cullen v. Cect, 45 Wis.2d 432, 173 N.W.2d 175, 187

32a

Appendia “D”

(1970); Coffman v. State (Tenn.), 466 S.W.2d 241, 243

(1970), cert. den. 404 U.S. 1019, 92 S.Ct. 689, 30 L.Ed.2d

668; Bankston v. State (Miss.), 236 So.2d 757, 760 (1970) ;

State v. Cooper, 54 N.J. 330, 255 A.2d 232, 236 (1969) ; State

v. Castonguay (Me.), 240 A.2d 747, 750 (1968); Lem v.

Commonwealth (Ky.), 419 S.W.2d 759, 761 (1967).

The defendant’s argument is based on the law stated in

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d

707; and Ashe v. Swenson, 397 U.S, 436, 90 S.Ct. 1189, 25

L.Ed.2d 469. Essentially his argument is that these deci-

sions, as well as many other cases cited by him, have weak-

ened Bartkus to the point where it should no longer be

followed. He points to no case which overrules Bartkus.

Sustaining the viability of Bartkus in cases making the

same claims as the defendant makes here are the following:

United States v. Villano, 529 F.2d 1046, 1061 (1976) ; United

States v. Johnson, 516 F.2d 209, 212 (1975) ; United States

v. Hayles, 492 F.2d 125, 126 (1974); United States v.

Vaughan, Jr., 491 F.2d 1096, 1097 (1974); United States v.

Smaldone, 485 F.2d 1333, 1343 (1973); Martin v. Rose, 481

F.2d 658, 659 (1973), cert. den. 414 U.S. 876, 94 S.Ct. 86, 38

L.Ed.2d 121; United States v. Crosson, 462 F.2d 96, 103

(1972); Birch v. United States, 451 F.2d 165, 167 (1971);

United States v. Synnes, 438 F.2d 764, 773 (1971); Turley

v. Wyrick, 415 F.Supp. 87, 88 (1976); Klein v. Murtagh,

355 N.Y.S.2d 622, 626, 44 A.D.2d 465 (1974); State v.

Fletcher, 26 Ohio St.2d 551, 271 N.E.2d 567, 569 (1971),

cert. den. 404 U.S. 1024, 92 S.Ct. 699, 30 L.Ed.2d 675;

Breedlove v. State (Tex. Cr. App.), 470 S.W.2d 880, 882

(1971), cert. den. 405 U.S. 1074, 92 S.Ct. 1512, 31 L.Ed.2d

808 ; State ex rel. Cullen v. Ceci, 485 Wis.2d 432, 173 N.W.2d

175, 187 (1970); Bankston v,. State Wass ), 236 So.2d 757,

760 (1970).

33a

Appendia “D”

Reference is made to the decision of Saden, J., in State

v. Tiche, 33 Conn. Sup. 51, 360 A.2d 135. In that case, in

which the issue of double jeopardy was raised, is the same

situation existing here; transaction and events were the

same as those in the instant case and there having been a

previous conviction in the federal court.

“Nevertheless, the law in the area of successive federal-

state prosecutions for the same kind of offense is clear.

The doctrine of dual sovereignty allows successive federal-

state prosecutions for the same offense. Abbate v. United

States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729; Bartkus

v. Illinois, supra; and United States v. Lanza, 260 U.S. 377,

43 S.Ct. 141, 67 L.Ed. 314. The court in Lanza stated (p.

382, 43 S.Ct. p. 142): ‘We have here two sovereignties, de-

riving power from different sources, capable of dealing

with the same subject-matter within the same territory, .. .

Each government in determining what shall be an offense

against its peace and dignity is exercising its own sover-

eignty, not that of the other.’ In Bartkus, the petitioner

was acquitted of robbery charges in a federal court and re-

tried and convicted on that same robbery charge and the

same evidence by a state court. The court, citing a large

body of impressive precedent which showed that courts had

for years refused to bar a second trial for the same offense,

even when there had been a prior trial by another govern-

ment, reaffirmed the dual sovereignty doctrine and pro-

claimed reprosecution by a state government after trial by

the federal government not to be in violation of the double

jeopardy provisions of the United States constitution.

“Cases such as Ashe v. Swenson, supra, n.1; Waller v.

Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed2d 435; and

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d

707, which followed Bartkus, were thought by some to have

34a

Appendix “D”

impugned the doctrine of dual sovereignty, but all of them

involved successive state court prosecutions in the same

state, and subsequent cases do not view them as rejecting

th: concept of dual sovereignty. Both the federal courts

(United States v. Ackerson, 502 F.2d 300, 302 [8th Cir.];

United States v. Delay, 500 F.2d 1360, 1362 [8th Cir.];

United States v. Hayles, 492 F.2d 125, 126 [5th Cir.];

United States v. Smaldone, 485 F.2d 1333 [10th Cir.];

Martin v. Rose, 481 F.2d 658, 659 [6th Cir.], cert. denied,

414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121; United States v.

Jackson, 479 F.2d 684, 689 [5th Cir.]; United States v.

Barone, 467 F.2d 247, 250 [2d Cir.]; United States v. Cros-

son, 462 F.2d 96, 103 [9th Cir.]; and the state courts (Bell

v. State, 22 Md.App. 496, 510, 323 A.2d 677, cert. denied, 421

U.S. 1003, 95 S.Ct. 2405, 44 L.Ed.2d 672; Sta‘ v. Turley,

518 S.W.2d 207, 210 [Mo. App.], cert. denied, 421 U.S. 966,

95 S.Ct. 1956, 44 L.Ed.2d 454; State v. Fletcher, 26 Ohio St.

2d 221, 271 N.H.2d 567, cert. denied, 404 U.S. 1024, 92 S.Ct.

699, 30 L.Ed.2d 675; Commonwealth v. Mills, 447 Pa. 163,

286 A.2d 638) have made this manifest. In addition, the

United States Supreme Court has denied certiorari in all

of the subsequent cases which have sought to reverse the

dual sovereignty concept, e.g., Martin v. Rose, supra.

“Bartkus v. [llinois, 359 U.S. 121, 79 S.Ct. €76, 3 L.Ed.2d

684, is still the law and successive prosecutions by the

federal and state governments for the same offense do not

constitute double jeopardy. Commonwealth v. Mills, supra.

Thus, even if we are dealing here with the same offense, the

State of Connecticut is not barred from pursuing its rights

to try the defendant.” State v. Tiche, ante, at 136-7.

The defendant’s motion to dismiss is denied.

Irving Levine, J.

Filed December 21, 1977. :

35a

Appendix “E”’

(United States Constitution)

UNITED STATES CONSTITUTION

AMENDMENT [V.]

Capital crimes; double jeopardy; self-incrimination; due

process; just compensation for property

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy

of life or limb; nor sha!l be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just com-

pensation.

¢%

> >

36a

Appendix “F”’

(United States Constitution)

UNITED STATES CONSTITUTION

AMENDMENT XIV.

§ 1. Citzenship rights not to be abridged by states

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.